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Photographic 

Sciences 

Corporation 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductions  historiques 


A^ 


Technical  and  Bibliographic  Notes/Notes  techniques  et  bibliographiques 


The  Institute  has  attempted  to  obtain  the  best 
original  copy  available  for  filming.  Features  of  this 
copy  which  mpy  be  bibliographically  unique, 
which  may  alter  any  of  the  images  in  the 
reproduction,  or  which  may  significantly  change 
the  usual  method  of  filming,  are  checked  below. 


L'Institut  a  microfilme  le  meilleur  exemplaire 
qu'il  lui  a  ete  possible  de  se  procurer    Les  details 
de  cet  exemplaire  qui  sont  peut  etre  uniques  du 
point  de  vue  bibliographique,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  una 
modification  dans  la  m6thode  normale  de  filmage 
sont  indiqu^s  ci-dessous 


D 


Coloured  covers/ 
Couverture  de  couleur 

Covers  damaged/ 


□    Covers  damaged/ 
Couverture  endommag^e 


Covers  restored  and^or  laminated/ 
Couverture  restaur6e  et/ou  pellicul^e 

'  Cover  title  missing/ 
Le  titre  de  couverture  manque 


□    Coloured  mans/ 
Cartes  g6ographiques  en  couleur 

□    Coloured  ink  (i.e   other  than  blue  or  black)/ 
Encre  de  couleur  (i.e.  autre  que  bleue  ou  noire) 


□    Coloured  pages/ 
Pages  de  couleur 

□    Pages  damaged/ 
Pages  endommagees 

□    Pages  restored  and/or  laminated/ 
Pages  restaur^es  et/ou  pelliculees 


S 


Pages  discoloured,  stained  or  foxed/ 
Pages  d^colorees,  tachetees  ou  piquees 


□    Pages  detached/ 
Pages  detrjchees 

□    Showthrough/ 
Transparence 


D 


Coloured  plates  and/or  illustrations/ 
Planches  et/ou  illustrations  en  couleur 


D 


Quality  of  print  varies/ 
Quality  in^gale  de  I'impression 


D 


Bound  with  other  material/ 
Rvili6  avec  d'autres  documents 


D 


Includes  supplementary  material/ 
Comprend  du  materiel  supplementaire 


D 


□ 


Tight  binding  may  cause  shadows  or  distortion 
along  interior  margin/ 

Lareliure  serree  peut  causer  de  I'ombre  ou  de  la 
distortion  le  long  de  la  marge  int6rieure 

Blank  leaves  added  during  restoration  may 
appear  within  the  text.  Whenever  possible,  these 
have  been  omitted  from  filming/ 
II  se  peut  que  certaines  pages  blanches  ajout6es 
lors  dune  restauration  apparaissent  dans  le  texte, 
mais,  lorsque  cela  6tait  possible,  ces  pages  n'ont 
pas  eti  fiim6es. 


D 

D 


Only  edition  available/ 
Seule  Edition  disponible 

Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc.,  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partiellement 
obsrurcies  par  un  feuiilet  d'errata,  une  pelure, 
etc..  ont  6te  film6es  d  nouveau  de  facon  a 
obtenir  la  meilleure  image  possible 


□    Additional  comments:/ 
Commentaires  suppl6mentaires; 


This  item  is  filmed  at  the  reduction  ratio  checked  below/ 

Ce  document  est  film6  au  taux  de  reduction  indiqu6  ci-dessous. 


10X 

14X 

18X 

22X 

26X 

SOX 

\ 

^"^ 

i9y 

^"^ 

^f>x 

20X 

24  X 

28X 

32  X 

ails 

du 

(difier 

une 

nage 


The  copy  filmed  hero  has  been  roprodticod  thanks 
to  the  generosity  of; 

Libr.uy  of  Coiwi'*'^'* 
Photoduplic.«tu>n  Sofvica 

The  images  appearing  hero  are  the  host  quality 
possible  considerinq  the  condition  i'nd  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


L  Bxemplaire  film*^  fiit  rnproduit  grace  A  la 
g6n^rosit(^  de 

Library  of  Congress 
Photoduplication  Sorvico 

Les  images  suivantes  oni  6t6  reproduites  aver,  le 
plus  grand  soin,  compte  teiiu  de  la  condition  et 
de  la  nettet6  de  I  exemplaire  film^,  et  en 
conformity  avec  les  conditions  du  contrat  de 
filmage. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres 
sion,  or  the  back  cover  when  appropriate    All 
other  original  copins  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres 
sion,  and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  — ♦>  (niaaning     CON 
TINUED"),  or  the  symbol  V  (meaning     END"), 
whichever  applies. 

Map  ,  plates,  charts,  etc.    may  be  filmed  at 
differei.      eduction  ratios   Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required   The  following  diagrams  illustrate  the 
method: 


Les  exemplaires  originaux  dont  la  couverture  en 
papier  est  imprim^e  sont  film6s  en  commencant 
par  le  premier  plat  et  en  terminant  soit  par  la 
derni^re  page  ,^ui  comporte  une  empreinte 
d  impression  ou  d'illustration,  soit  par  le  second 
plat,  selon  le  cas.  Tous  les  autres  exemplaires 
originaux  sont  tilm6s  en  commencant  par  la 
premiere  page  qui  comporte  une  empreinte 
dimpression  ou  d'illustration  et  en  terminant  par 
la  derni^re  page  qui  comporte  une  telle 
empreinte. 

Un  des  symboles  suivants  apparaitra  sur  la 
derni6re  image  de  chaque  microfiche,  selon  le 
cas:  le  symbole  — •►  signifie  "A  SUIVRE  ",  le 
symbole  V  signifie    FIN  ". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  etre 
film6s  cl  des  taux  de  reduction  diff6rents. 
Lorsque  le  document  est  trop  grand  pour  etre 
reproduit  en  un  seul  cliche,  il  est  film6  A  partir 
dp  Tangle  sup6rieur  gauche,  de  gauche  S  droite, 
et  de  haut  en  bas,  en  prenant  le  nombre 
d'images  a6cessaire.  Les  diagrammes  suivants 
illustrent  la  methode. 


rrata 
to 


pelure. 
n  a 


1 

2 

3 

1 


4 


32X 


M 


ESSAYS 


ON  TBI 


PRESENT  CRISIS  IN  THE  CONDITION 


THE  AMERICAN  INDIANS ; 


riMT  rVILIIHEO   IN 


THE  NATIONAL  INTELLIGENCER, 


UNDER  THE  SIGNATURE  OF 


^ 


•"^M  TexfcrrAaV^    ^'y'\>'''^ 


THOMAS  KITE-44  WALNUT  STREET. 


t 

^ 


1830. 


'    '  -if 

\ 


f4 

e 


•  ADVERTISEMENT. 


5 


C 

9> 


In  the  letter,  which  contained  the  two  firit  papem  of  the  following  Mriei,  »cl- 
dre»9Pd  to  the  Editors  of  the  National  Intelligencer,  an  introductory  statement 
wn»  given,  for  the  purpose  of  diiulosing  the  general  design  of  the  writer,  and  de- 
scribing the  manner  m  whicli  he  intended  to  pursue  the  investigation.  It  ts  deem- 
ed proper  to  copy  that  statement,  as  a  preface  to  the  formal  discussion. 

Gentlemen  :  I  send  for  your  paper  two  m  nbers  of  a  series  of  Essays  or\.  the 
pending  and  ripening  controctrty  between  the  United  States  and  the  Indians.  I 
hope  you  will  insert  them.  Permit  me  as  an  inducement,  to  make  the  foUowing 
suggestions : 

1.  This  is  a  subject  which  must  be  abundantly  discussed  m  our  country. 

2.  It  will  bo  among  the  most  important,  and  probably  the  most  contested,  busi- 
ness of  the  21st  Congress.  Some  able  members  of  Congress,  to  my  certain  know- 
ledge, wish  to  have  the  matter  discussed.  •       .u  »  «i,b 

3.  I  expect  to  make  it  appear,  by  a  particular  examination  of  treaties,  tnat  ine 
United  States  ere  bound  to  secure  to  the  Cherokees  the  integrity  and  inviolabili- 
ty of  their  territory,  till  they  voluntarily  surrender  it. 

4.  In  the  course  of  this  investigation,  1  shall  not  agree  with  the  present  t-^ocu- 
tive  of  the  United  States,  in  the  construction  which  ho  gives  to  treaties ;  ""»«"*" 
be  sustained  by  the  uniform  tenor  of  our  negotiations  with  the  Indians,  and  legis- 
lation for  them,  from  the  origin  ot  our  government  to  the  present  day. 

5.  My  discussions  will  not  assume  a  party  character  at  all :  ">"  ^"•"^'•L 
speak  of  the  President,  or  the  Secretary  at  War,  it  shall  always  be  by  their  offi- 
cial designation,  and  in  a  respectful  "-  nner.    Though  I  think  that  the  rfe""*"" 
has  greatly  mistaken  his  powers  an.'      ,  duty,  in  regard  to  the  Indians,  I  .Have  no 
wish  concerning  him,  but  that  he  ma^  oe  a  wise  and  judicious  ruler  of  our  grow- 

1  have  always  approved  of  tlie  decorum  waichyou  have  obaerved,  in  speaking 

of  public  characters.  •  ,  ■  a  :_«^ ....,: 

6.  I  propose  to  furnish  two  numbers  a  week,  that  they  may  be  copied  into  semi- 
weekly  papers,  if  their  editors  see  fit.  •  „r  _   .-J  .„ 

7.  The  two  numbers  now  sen*  have  been  read  to  an  eminent  civilian,  wld  ap- 
proved by  him ;  and  I  shall  endeavour  to  be  careful  in  my  principles,  and  accu- 
rate in  my  conclusions.  At  any  rate,  should  I  fall  into  error,  I  am  perfecUy  wil- 
ling that  my  error  should  be  exposed.  .. u. »»!,«,« 

8.  Should  you  insert  these  papers  as  I  hope  you  may,  I  would  rfqu^t  that  thew 
may  be  as  little  delay  as  possible  :  for  there  are  many  symptoms  that  the  country 
will  hti  awake  to  the  discussion,  and  is  impatient  for  it.  _-.i..„.  .-a 

In  the  mean  time,  permit  me  to  use  the  signature  of  that  upright  legislator  ana 
distinguished  phUanthropist,  WU^LIAM  PENN. 

DaOjf  Jfat.  MeU.  Aug.  1 . 1 839.]  • 


e 


9 


PRESENT  CRISIS  IN  THE  CONDITION 


*■» 


winjf  Mriei,  ad- 
ctory  BlRtcment 
writer,  »nd  d«- 
ioii.  It  ii  de«m- 
ssion. 

)t'  EMayt  on  the 

the  ludiani.  I 
10  the  following 

country, 
contested,  busi- 
ly  certain  know- 

reaties,  that  the 
•  and  inviolabili- 

)  present  Execu- 
Batica ;  but  shall 
dians,  and  legis- 
day. 

and  whenever  I 
I  be  by  their  offi- 
at  the  President 
idians,  I  have  no 
ler  of  our  grow- 

ved,  in  speaking 
copied  into  semi- 
civilian,  and  ap- 
ciples,  and  accu- 
im  perfectly  wil- 

request  that  there 
that  the  country 

;ht  legislator  and 

AM  PENN. 


OF  THS 


AMEBXOJEM  imXAKS. 


No.  I. 

CotUtntt  of  thU  JVumier.— Information  needed— Great  interest*  at  stake— The 
character  of  our  country  involved— The  world  will  judge  m  tho  rase— Value 
of  national  character- Apprehensions  of  the  divine  displeasure— Statement  ol 
the  controversy. 

Every  careful  observer  of  public  affairs  must  have  seen,  that  a  cri- 
flis  has  been  rapidly  approaching,  for  several  years  past,  in  reference 
to  the  condition,  relations,  and  prospects,  of  the  Indian  tnbes,  in  the 
St;  ithwestem  parts  of  the  United  States.  The  attention  of  man'  of  our 
M03J  intelligent  citizens  has  been  fixed  upon  the  subject  with  great  in- 
terest. Many  others  are  beginning  to  inquire.  Several  public  docu- 
ments, which  have  recently  appeared  in  the  newspapers,  serve  to  awa- 
ken curiosiiy,  and  to  provoke  investigation. 

Still,  howev!  r,  the  mass  of  the  community  possess  but  very  little  in- 
formation on  Ihfc  Jiubject ;  and,  even  among  the  best  informed,  scarcely 
a  man  can  be  found,  who  is  thoroughly  acquainted  with  the  questions 
at  issue.  Vague  and  inconsistent  opinions  are  abroad  ;  and  however 
desirous  the  people  may  be  of  coming  at  the  truth,  the  sources  of 
knowledge  are  not  generally  accessible.  Some  persons  think,  that  the 
Indians  have  a  perfect  right  to  the  lands  which  they  occupy,  except  so 
far  aa  their  original  right  has  been  modified  by  treaties  fairiy  made,  and 
fully  understood  at  the  time  of  signing.  But  how  far  such  a  nnodifica- 
tion  may  have  taken  place,  or  whether  it  has  taken  place  at  all,  these 
persons  admit  themselves  to  be  ignorant.  Others  pretend,  ihat  In- 
dians have  no  other  rightjto  their  lands,  than  that  of  a  tenant  at  mil; 
that  is,  the  right  of  remaising  where  they  are,  till  the  owners  of  the  land 
shall  require  them  to  remove.  It  is  needless  to  say,  that,  in  the  estima- 
tion of  such  persons,  the  white  neighbours  of  the  Indians  are  the  real 
owners  of  the  land.  Some  people  are  puzzled  by  what  is  supposed  to 
be  a  collision  between  the  powers  of  the  general  government  and  the 


mmmmmmmrnr-"- 


elaimt  of  particular  States.  Othcra  do  not  aee  that  there  ia  any  hard- 
ship in  br-.ntrinp;  tiic  Indians  under  the  laws  of  the  States,  in  the  neigh- 
bourhood of  whicii  they  iivo  ;  or,  as  the  phrase  is,  within  (Ae /tmit«  of 
which,  they  live.  Some  consider  it  the  greatest  kindness  that  can  Le 
done  to  the  Indiana  to  remove  them,  even  without  their  consent  and 
against  their  will,  to  a  country  where,  as  is  supposed,  they  will  be  in  a 
con<litiun  more  favourable  to  their  iiappiness.  Others  think,  that  if  they 
are  compelled  to  remove,  their  circumstances  will  be  in  all  respects 
worse  than  at  present  ;  and  that,  suiTering  under  a  deep  sense  of  injury, 
and  considering  themselves  trodden  down  by  the  march  of  inexorable  op- 
pression, they  W'll  become  utterly  dispirited,  and  sink  rapidly  to  the  low- 
est degradation,  and  to  final  extinction. 

So  great  a  diversity  of  opinion  is  principally  owing  to  want  of  cor- 
rect information.  It  ia  my  design,  Messrs.  Editors,  to  furnish,  in  a  few 
numbers  of  moderate  length,  such  materials,  as  will  enable  every  dis- 
passionate and  disinterested  man  to  determine  where  the  right  of  the 
case  is. 

^n  the  moan  time,  I  would  obaenre,  that  the  people  of  the  United 
States  owe  it  to  themselves,  and  to  mankind,  to  form  a  correct  judg- 
ment in  this  matter.  The  questions  have  forced  themselves  upon  us, 
as  a  nation  : — What  ia  tobecome  of  the  Indians?  Have  they  any  rights? 
If  they  have,  What  are  these  rights?  and  how  are  they  to  be  secured? 
These  questions  must  receive  a  practical  answer  ;  and  that  very  soon. 
What  the  answer  shall  be,  is  a  subject  of  the  deepest  concern  to  the 
country. 

The  number  of  individuals,  who  arc  interested  in  the  course  now  to 
be  pursued,  ia  very  great.  It  is  computed,  that  there  are  within  our 
national  limits  more  than  300,000  Indians ;  some  say  500,000  ;  and, 
in  the  southwestern  States,  the  tribes  whose  immediate  removal  is  in 
contemplation,  have  an  aggregate  population  of  more  than  C0,000. 
The  interests  of  all  these  "people  ate  implicated,  in  any  measure  to  be 
taken  respecting  them. 

The  character  of  our  government,  and  of  our  country,  may  be  deeply 
involved.  Most  certainly  an  indelible  stigma  will  be  fixed  upon  us,  if, 
in  the  plenitude  of  our  power,  and  in  the  pride  of  our  superiority,  we 
shall  be  guilty  of  manifest  injustice  to  our  weak  and  defenceless  neigh- 
bours. There  are  persons  among  us,  not  ignorant,  nor  prejudiced,  nor 
under  the  bias  of  private  interest,  who  seriously  apprehend,  that  there  is 
danger  of  our  national  character  being  most  unhappily  affected,  before 
the  subject  shall  be  fairly  at  rest.  If  these  individuals  are  misled  by  an 
erroneous  view  of  facts,  or  by  the  adoption  of  false  principles,  a  free 
discussion  will  relieve  their  minds. 

It  should  be  remembered,  by  our  rulers  as  well  as  others,  that  thii 
controversy,  (for  it  has  assumed  the  form  of  a  regular  controversy,) 
will  ultimately  be  well  understood  by  the  whole  civilized  world.  No 
subject,  not  even  war,  nor  slavery,  nor  the  nature  of  free  institutions, 
will  be  more  thoroughly  canvassed.  The  ypice  of  mankind  will  be 
pronounced  upon  it ; — a  voice,  which  will  not  be  drowned  by  tjie  clamor 
of  ephemeral  parties,  nor  silenced  by  the  paltry  considerations  of  local 
or  private  interest.  Such  men  as  the  Baron  Humboldt  and  the  Due  de 
Broglie,  on  the  continent  of  Europe,  and  a  host  of  other  statesmen,  and 
orators,  and  powerful  writers,  there  and  in  Great  Britain,  will  not  be 


« if  any  hard- 
in  tho  nei|?h- 
1  Ihe  limits  of 
s  that  can  Le 
r  consent  and 
y  will  be  in  a 
ik,that  if  they 
n  all  respects 
cnse  of  injury, 
inexorable  op- 
ily  to  the  low- 

0  want  of  cor- 
rnish,  in  a  few 
ible  every  dis- 

1  right  of  the 

of  the  United 
'.  correct  judg- 
)lve8  upon  us, 
ey  any  rigktt  ? 
I  to  he  secured? 
ihat  very  soon. 
:oncern  to  the 

course  now  to 
are  within  our 
500,000  ;  and, 

removal  is  in 
I  than  60,000. 
measure  to  be 

may  be  deeply 
ced  upon  us,  if, 
superiority,  we 
enceless  neigh- 
prejudiced,  nor 
id,  that  there  is 
aiiected,  before 
re  misled  by  an 
inciples,  a  free 

ihers,  that  this 
r  controveny,) 
ed  world.  No 
ree  institutionSt 
lankind  will  be 
id  by  t|ie  clamor 
srations  of  local 
and  the  Due  de 
'  statesmen,  and 
tin,  will  not  be 


greatly  influenced,  in  deciding  a  grave  question  of  public  morality,  hj 
the  excitemenU  of  one  of  our  elections,  or  tho  selfish  views  of  some 
little  portbus  of  the  American  community.     Any  course  of  measures, 
in  regard   to  the  Indians,  which  is  manifestly  fair,  end  generous,  and 
benevolent,  will  command  the  warm  and  decided  approbation  of  iiilelii- 
gent  men,  not  only  in  tho  present  age,  but  in  all  succeeding  times.   And 
with  equal  confidence  it  may  be  said,  if,  in  the  phraseology  of  Mr.  Jef- 
ferson, tho  people  of  tho  United  States  should  "feel  power,  and  forget 
right;" — itthey  should  resemble  a  man,  who,  abounding  in  wealth  of 
every  kind,  and  assuming  the  office  of  lawgiver  and  judge,  first  declares 
himself  to  be  the  owner  of  his  poor  neighbour's  little  farm,  and  then 
ejects  the  same  neighbour  as  a  troublesome  incumbrance  ; — if,  with  land 
enough,  now  in  the  undisputed  possession  of  tho  whites,  to  sustain  ten 
times  our  present  population,  we  should  compel  the  remnants  of  tribes 
to  leave  the  places,  which,  received  by  inheritimce  from  their  fathers  and 
never  ali'inatod,  tlioy  have  long  regarded  as  their  permanent  homes  ; — 
if,  when  aske*!  to  explain  the  treaties,  which  wo  first  proposed,  then 
Bolemnly  executed,  and  have  many  times  ratified,  we  stammer,  and  pre- 
varicate, and  complete  our  disgrace  by  an  unsuccosaful  attempt  to  stul- 
tify, not  merely  ourselves,  but  tho  ablest  and  wisest  statesmen,  whom 
our  country  has  yet  produced  ; — and  if,  in  pursuance  of  a  narrow  and 
selfish  policy,  we  should  at  this  day,  in  a  time  of  profound  peace  and 
great  national  prosperity,  amidst  all  our  professions  of  magnanimity  and 
benevolence,  and  in  the  blazing  light  of  the  nineteenth  century,  drive 
away  these  remnants  of  tribes,  in  such  a  manner,  and  under  such  au- 
spices, as  to   insure  their  destruction  ; — if  all  this  should  hereafter 
appear  to  be  a  fair  statement  of  the  case  ; — then  tho  sentence  of  an 
indignant  world  will  be  uttered  in  thunders,  which  will  roll  and  rever- 
berate for  ages  after  the  present  actors  in  human  afTairs  shall  have  pass- 
ed away.     If  the  people  of  the  United  States  will  imitate  the  ruler  who 
coveted  Naboth's  vineyard,  the  world  will  assuredly  place  them  by  the 
aide  of  Naboth's  oppressor.     Impartial  history  will  not  ask  tiiem,  whe- 
ther they  will  feel  gratified  and  honored  by  such  an  association.     Their 
consent  to  the  arrangement  will  not  be  necessary.    The  revolution  of 
the  earth  in  its  orbit  is  not  moro  certain. 

It  may  be  truly  said,  that  the  character  which  a  nation  sustains,  in  its 
intercourse  with  the  great  community  of  nations,  is  of  more  value  than 
any  other  of  its  public  possessions.  Our  diplomatic  agents  have  uni- 
formly declared,  during  tho  whole  period  of  our  national  history,  in  their 
discussions  with  the  agents  of  foreign  powers,  that  we  offer  to  others  the 
same  justice  which  we  ask  from  them.  And  though,  in  times  of  nation- 
al animosity,  or  when  the  interests  of  diiferent  communities  clash  with 
each  other,  there  will  be  mutual  reproaches  and  recriminations,  and 
every  nation  will,  in  its  tarn,  be  charged  with  unfairness  or  injustice, 
atill,  among  nations,  as  among  individuals,  there  is  a  difference  betweeii 
thepreciout  and  the  vile;  and  that  nation  will  undoubtedly,  in  the  long 
course  of  years,  be  most  prosperous  and  moot  respected,  which  most  se- 
dulously cherish  38  a  character  for  fair  dealing,  and  even  generosity,  in 
all  its  transactious. 

There  is  a  higher  consideration  still.  The  Great  Arbiter  of  Nations 
never  fails  to  take  cognizance  of  national  delinquencies.     No  sophistry 


I\ 


^ 


I 


can  elude  hi*  scrutiny  ;  no  array  of  plaurble  arg«tnent«,  or  of  imootli 
bnt  hollow  profewions,  can  bia«  his  judgmont ;  aiui  ho  Ima  at  hia  dispoial 
most  abundant  means  of  executing  his  decisions.  In  many  forms,  and 
with  awful  solemnity,  ho  has  declared  his  abhorrence  of  oppression  in 
every  shape  ;  and  especially  of  irjustico  perpetrated  against  the  weak  by 
the  strong,  when  strength  ia  in  fact  made  the  only  rule  of  action.  The 
people  of  the  United  Stated  are  not  altogeth-r  guiltless,  in  regard  tp  their 
treatment  of  the  aborigines  of  this  continent ;  but  they  cannot  as  yet  be 
charged  with  any  tystematic  legislation  on  this  subject,  inconsistent 
with  the  plainest  principles  of  moral  honesty.  At  least,  I  am  not  aware 
of  any  proof,  by  which  such  a  charge  could  be  sustained. 

Nor  do  I,  in  these  preliminary  remarks,  attempt  to  characterize  plea- 
sures now  in  contemplation.  But  it  is  very  clear,  that  our  government 
and  our  people  should  be  extremely  cautious,  lest,  in  judgmg  between 
ourselves  and  the  Indians,  and  carrying  our  own  judgment  mto  execu- 
tion with  a  strong  hand,  wo  incur  the  displeasure  of  the  Most  High.— 
Some  very  judicious  and  considerate  men  in  our  country  think,  that  our 
public  functionaries  should  stop  where  they  are  ;  that,  in  the  first  place, 
we  should  humble  ourselves  before  God  and  the  world,  thai  we  have 
done  81)  much  to  destroy  the  Indians,  and  so  little  to  save  them  ;  and 
that,  before  another  step  is  taken,  there  should  be  the  most  thorough 
deliberation,  on  the  part  of  all  our  constituted  authorities,  lest  we  act  in 
such  a  manner  as  to  expose  ourselves  to  the  judgmenU  of  Heaven. 

I  would  have  omitted  this  topic,  if  I  thought  that  a  majority  of  read- 
era  would  regard  it  its  introduction  as  a  matter  of  course,  or  as  a  piece 
of  affectation,  designed  for  rhetorical  embellishment.  In  my  delibe- 
rate opininion,  it  is  more  important,  and  should  be  more  heeded,  than 
all  other  considerations  relating  to  the  subject ;  and  the  people  of  the 
United  States  will  find  it  so,  if  they  should  unhappily  suppose  them- 
selves above  the  obligation  to  do  justly,  love  mercy,  and  walk  humbly 

with  their  God.  .     u    .u 

I  close  tliis  introductory  number,  by  stating  what  seems  to  be  the 
present  controversy  between  the  whif  and  the  Indian  tr.bes  of  the 
southwestern  States  :  I  say  the  whites,  ^that  is  our  country  Penerally,) 
because  certain  jKJsitions  arc  taken  by  the  government  of  the  United 
States,  and  certain  claims  are  made  by  the  State  of  Georgia,  and  cer- 
tair  -.ther  claims  by  the  States  of  Alabama  and  Mississippi.  The  In- 
dians do  not  admit  the  validity  of  any  of  these  positions  or  claims  ;  and 
if  they  have  a  perfect  original  title  to  the  lands  they  occupy,  which  title 
they  have  never  forfeited  or  alienated,  their  rights  cannot  be  affected  by 
the  charters  of  kings,  nor  by  the  acts  of  provincial  legislatures,  nor  by 
the  compacts  of  neighbouring  states,  nor  by  the  mandates  of  the  execu- 
tive  branch  of  our  national  government. 

The  simple  question  if  :  Have  the  Indian  tribes,  residing  as  separate 
eommunities  in  the  neighbourhood  of  the  whites,  a  permanent  tale  to  the 
territory,  which  they  inhcriicdfrom  their  fathers,  which  they  have  neUher 
•forfeited  nor  sold,  and  which  they  now  occupy  ?  ,      •     ,    »   u 

For  the  examination  of  this  question,  let  the  case  of  a  single  tribe  or 
nation  be  considered  ;  for  nearly  the  same  i-nnciplesare  involved  in  the 
claims  of  all  the  Indian  nations.  .  . 

The  Chorokees  contend,  that  their  nation  ha»  been  m  possessiop  of 


H 


\,  or  of  imooib 
I  at  hii  disposal 
lany  forms,  and 
r  opprcimion  in 
ist  tlie  weak  by 
f  action.  The 
I  regard  Ip  their 
innot  as  yet  be 
:t,  inconsistent 
[  am  Dot  aware 

iractcrize  pica- 

tur  government 

Jging   betweeo 

ent  into  execU- 

(  Most  High. — 

think,  that  our 

the  first  place, 

,  that  we  have 

avo  them  ;   and 

most  thorough 

3,  lest  we  act  in 

)f  Heaven. 

ajority  of  read- 

e,  or  an  a  piece 

In  my  delibe- 

re  heeded,  than 

3  people  of  the 

y  suppose  them- 

nd  walk  humbly 

ccms  to  be  the 
an  tribes  of  the 
intry  generally,) 
It  of  the  United 
eorgia,  and  cer- 
jsippi.  The  In- 
)  or  claims  ;  and 
cupy,  which  title 
ot  be  affected  by 
islatures,  nor  by 
tes  of  the  execu- 

iding  as  teparate 
lanent  title  to  the 
they  have  neither 

'  a  single  tribe  or 
:e  involved  in  the 

I  in  possessiop  of 


thwir  present  territory  from  time  immemorial ;  that  neither  the  king  of 
Great  Britn  n,  nor  the  early  settlern  of  Georgia,  nor  the  state  of  Ocorgit 
after  the  revolution,  nor  the  United  Stales  siiico  the  adoption  of  the  fede- 
ral constitution,  have  acquired  any  lille  to  the  soil,  or  any  sovereignly 
over  the* territory  ;  and  that  the  title  to  the  soil  and  sovereignty  over 
the  territory  have  boon  repeatedly  guaranteed  to  the  Cherokeet,  as  a 
nation,  by  the  United  States,  in  treaticJ*  which  are  now  binding  on  both 

parties. 

The  government  of  the  United  Htalcs  alleges,  as  appears  t  a  letter 
from  the  Secretary  of  War,*  dated  April,  1029,  that  Great  B/itain,  pre- 
vious to  the  rovolution,  "  claimed  entire  sovereignly  within  the  limits  of 
what  conslitutcd  the  thirteen  United  States  ;"  that «  all  the  rights  of  sove- 
reignty which  Great  Britain  hud  within  said  states  became  vested  in  said 
•tatcs  respectively,  as  a  consequence  of  the  declaration  of  indcpsndence, 
aiM  the  treaty  of  17C3  ;'  thot  the  Cherokces  were  merely  'permitted' 
to  reside  on  tlicir  lands  by  the  United  States  ;  that  this  permission  is  not 
to  be  construed  so  as  to  deny  to  Georgia  the  exercise  of  sovereignty ; 
and  that  the  United  States  has  no  power  to  guarantee  any  thing  more 
than  a  right  of  possession,  till  the  state  of  Georgia  should  see  fit  to  legis- 
late for  the  Cherokees,  and  dispose  of  them  as  she  should  judge  expe- 
dient, without  any  control  from  the  general  government. 

This  is  a  summary  of  the  positions  taken  by  the  Secretary  of  War  ; 
and,  though  not  all  of  them  expressed  in  his  own  language,  they  are  in 
strict  accordance  with  the  tenor  of  his  letter. 

In  my  next  number,  I  shall  proceed  to  inquire,  What  right  have  the 
Cherokeet  to  the  lands  tehich  they  occupy  ? 


No.  11. 


The  Cherokees  have  the  same  rights  as  other  men— They  are  not  hunters— The/ 
have  sold  much  good  land  to  the  United  States— Original  extent  of  their  coun- 
try—lu  present  extent— The  mere  clainw  of  one  party  cannot  affect  the  fights 
of  another  party — Necessity  of  examining  trcRties. 

In  my  first  number  I  prepared  the  way  to  inquire,  '  "What  right  have 
the  Cherokees  to  the  land^  which  they  occupy?  This  is  a  plain  question, 
and  easily  answered. 

The  Cherokees  are  ijuman  beings,  endowed  by  their  Creator  with  the 
same  natural  righu  as  other  men.  They  are  in  peaceable  possession  of 
a  territory  which  they  have  always  regarded  as  their  own.  This  terri- 
tory was  in  possessi'  •  of  their  ancestors,  through  an  unknown  scries  of 
generations,  and  has  couie  down  to  them  with  a  title  absolutely  unin- 
cumbered in  every  respect.  It  is  not  pretended,  that  the  Cherokees  have 
ever  alienated  their  country,  or  that  the  whites  have  ever  been  in  posses- 
lion  of  it. 

If  the  Cherokeea  are  interrelated  as  to  their  title,  they  can  truly  say, 

*  See  Appendix- 


\ 


/ 


\ 


<*  (Sod  gave  thia  country  to  our  anccitora.  We  hare  never  been  in  bon- 
dago  to  any  man.  Though  we  have  aold  much  land  to  our  white  neigh* 
bort,  wo  have  never  boiii(ht  any  inuu  them.  Wc  own  ihu  land  which 
we  now  occu{>y«  by  the  right  of  tho  original  poMossors  ;  a  right  which 
ia  allowed  in  all  countries  to  be  of  incontcitiblo  validity.  W*e  auert, 
therefore,  that  no  human  power  can  lowfully  compel  us  to  leave  our 
lands." 

If  the  Cherokee*  are  correct  in  their  statement  of  facts,,  who  can  resist 
their  conclusion  ?  Wo  might  as  well  ask  the  Chineac,  what  right  tKcy 
have  to  thoierritory  which  th'jy  occupy.  To  such  a  question  they  would 
answer,  *'  God  gave  this  land  to  our  ancostorr.  ^ur  nation  has  alwajf* 
been  in  possession  of  it,  so  far  as  hintory  and  tradition  go  back.  The 
nations  of  Kuropo  are  comparatively  of  recent  origin  ;  tho  commence- 
ment of  ours  is  lost  in  remote  antiquity." 

What  can  be  said  to  such  a  statement  as  this  ?  Who  can  argue  so 
plain  a  case  ? 

It  has  been  alleged,  that  tho  savage  of  the  wilderness  can  acquire  no 
title  to  the  forests,  through  which  he  pursues  his  game.  Without  ad- 
mitting this  doctrine,  it  is  sufficient  to  reply  here,  that  it  has  no  applica- 
tion to  the  case  of  the  Cherokees.  They  are  at  present  neither  savages 
nor  hunters.  It  does  not  appear  that  they  ever  were  mere  wanderers, 
without  a  stationary  residence.  At  the  earliest  period  of  our  becoming 
acquainted  with  their  condition,  they  had  fixed  habitations,  and  were  in 
undisputed  possession  of  a  widely  extended  country.  They  wrre  then 
in  the  habit  of  cultivating  some  land  near  their  houses,  where  they  planted 
Indian  corn,  and  other  vegetables.  From  about  the  commencement  of 
the  present  century,  they  have  addicted  themselves  mure  and  more  to 
agriculture,  till  they  now  derive  their  support  from  the  soii,  as  truly  and 
entirely  as  do  the  inhabitants  of  Pennsylvania  or  Virginia.  For  many 
years  Uiey  have  had  their  herds,  and  their  large  cultivated  fields.  They 
now  have,  in  addition,  their  schools,  a  regular  civil  government,  and 

{(laces  of  regular  Christian  worship.  They  earn  their  bread  by  the 
abor  of  their  own  hands,  applied  to  the  tillage  of  their  own  farms ;  and 
they  clothe  themselves  with  fabrics  made  at  their  own  looms,  from 
cotton  grown  in  their  own.  fields. 

The  Cherokees  did  not  show  tliemselves  unwilling  to  sell  their  lands, 
so  long  as  an  adequate  motive  was  presented  to  their  minds.  During 
every  administration  of  our  national  government,  applications  w«rt 
made  to  them  for  the  purpose  of  obtaining  additional  portions  of  their 
territory.  These  applications  were  nrged,  not  only,  nor  principally,  by 
the  consideration  of  the  money  or  presents  which  they  were  to  receive 
in  exchange,  but  oflen,  and  strongly,  by  the  consideration  that  they 
would  become  an  agricultural  people,  like  the  whites — that  it  was  for 
their  interest  to  have  their  limits  circumscribed,  so  that  their  young  men 
could  not  have  a  great  extent  of  country  to  hunt  in  ;  and  that,  when  they 
became  attached  to  the  soil,  and  engaged  in  its  cultivation,  the  United 
States  would  not  ask  them  to  sell  any  more  land.  Yielding  to  these 
arguments,  and  to  the  importunities  of  the  whites,  tlio  Cherokees  sold, 
at  different  times,  between  the  close  of  tho  revolutionary  war  and  the 
year  1820,  more  than  three  quarters  of  their  original  inheritance.     That 


}r  boen  in  bon* 
ir  white  neii^h* 
liu  luni]  whici] 
a  riffht  which 
y.  W*e  auert, 
I  to  leave  our 

who  can  reaiit 
vhat  right  they 
tion  they  would 
ion  has  alwayt 
^c  back.  The 
ho  commence- 

}  can  argue  to 

can  acquire  no 
.  Without  ad- 
hai  no  applies- 
neither  savage* 
ere  wanderers, 
f  our  becoming 
na,  and  were  in 
rhey  wrre  then 
ere  they  planted 
nmencement  of 
)re  and  more  to 
oil,  as  truly  and 
nia.  For  many 
d  fields.  They 
overnment,  and 
r  bread  by  the 
own  farms ;  and 
vn  looms,  from 

sell  their  lands, 
minds.  During 
>plication8  w«r« 
tortioos  of  their 
r  principally,  by 
were  to  receive 
ration  that  they 
-that  it  was  for 
their  young  men 
I  that,  when  they 
ition,  the  United 
iciding  to  ttiese 
Cherokees  sold, 
ary  war  and  the 
leritance.    That 


1 


the  reader  may  have  some  definite  idea  of  tlio  territory  in  question,  b«    i 
should  pursue  tho  following  .lelincation  ».y  tht  aid  ol  a  k<.o.I  .map. 

It  would  srnn  timt  tho  Cherokees  p.mesmi  land  extend.nK  to  th« 
follow.n^r  i'lNii.-.  If  n-'l  beyond  t!,.  n.,  u/. :  1  r..m  the  mo.Uli  of  Duck 
river,  in  Ten.ie:..ieo,  on  the  we«t.  t..  th.)  uat.rs  ..I  I  riiioh  Hroiul,  in  i>orth 
Carolina,  on  tho  cast ;  an.l  Iroiu  the  head  waters  ol  tho  lloUton,  in 
Virginia,  on  tho  north,  to  some  distance  down  the  ^  )c(.nee,  in  (icorgia.  on 
the  south;  e<.ipprisin)?.  besid.!  what  is  now  the  Cherokee  country,  more 
than  half  of  the  State  of  •rennes.co,  the  H..ulhern  part  ol  Kinitucky, 
the  southwest  corner  of  Vi,«inia,  a  considerable  p..rlion  of  both  of 
Iho  Carolinas,  a  small  portit.n  of  Georgia.  uikI  the  northern  part  ol 
Alabama.  This  tract  probably  contained  more  thun  .'Jo.OOO.UOO  acres, 
of  whichalarKO  proportion  is  extremely  fertile,  and  some  ■  '  it  not  infe- 
rior to  any  land  in  North  America,  or  perhaps  in  the  wor  d.  riie  coun- 
try is  also  generally  healthy,  and  the  climate  delitjhtful.  Ol  all  ..:is  vast 
and  beautiful  tract,  watered  by  numeroui.  rivers,  w'  icli  find  their  way  to 
tho  ocean,  some  of  llieni  circuitously  by  tho  Mississipi.i,  and  others  more 
directly  to  tho  culpb  of  Mexico  and  tho  Atlantic,  (lie  Cherokc-s  now 
retain  less  than  «,000,OOU  acres,  of  a  quality  "V >*='"'':, 'I'?,  "'""8® 
nualitv  of  that  which  thev  have  sold.  Georgia  claims  f^OOO.OOU  acres 
of  this  remnant,  as  falling  within  tho  map  of  that  State.  Alabama  claims 
nearly  l.OOO.UOO  of  tliu  residue.  Tho  portions  which,  in  the  g-jneral 
division,  will  fall  to  Tennes.sce  and  .North  Carolina,  seem  hardly  worth 
enquiring  about ;  for,  if  the  other  portions  arc  «ivcn  up,  or  taken  by 
force,  there  will  be  no  motive  for  retaininsi;  these. 

To  every  application  made  for  their  lands  within  the  last  ten  years, 
the  Cherokees  have  said,  "  We  aro  not  disposed  to  sell  any  inore.  We 
have  betaken  ourselves  to  an  ogricultural  life.  We  aro  making  progress 
in  civilization.  Wo  are  attached  to  our  schools  and  our  Y''"?!'"" 
teachers  ;  to  our  farms  ;  to  our  native  rivers  and  mountains.  We  have 
not  too  much  land  for  our  own  comfort,  and  for  aflordmg  us  a  fair  chance 
in  the  experiment  wc  are  making."  This  language  has  been  repeated 
in  many  forms,  and  with  every  indication  of  sincerity  and  earnestness. 

The  assertion  of  the  Cherokees,  that  their  present  country  is  not  too 
larire  for  a  fair  experiment  in  the  work  of  civilization,  is  undoubtedly 
correct  The  wisest  men,  who  have  thought  and  written  on  this  subject, 
asree  in  the  opinion,  that  no  tribe  of  Indians  can  rise  to  real  civilization, 
and  to  tho  full  enjoyment  of  Christian  society,  unless  they  can  have  a 
community  of  their  own  ;  andean  be  so  much  separated  from  the  whites, 
as  to  form  and  cherish  something  of  a  national  character.  If  the  limits 
of  the  Cherokee  country  wore  much  smaller  than  they  are,  this  would 

be  impracticable.  •       •      l       *i. 

Thus  stands  the  case  ;  and  it  is  now  my  intention  to  inquire  how  the 
ffovernment  of  the  United  States  has  regarded  the  Indian  title,  and 
how  it  has  been  regarded  by  tho  several  States  iii  the  vicinity  of  the 

Cherokees.  , 

Before  this  inquiry  is  commenced,  however,  it  is  proper  to  say,  tnat 
the  title  of  one  party  cannot  be  safely  docided  by  the  mere  claims  of 
another  party.  If  those  claims  are  founded  in  justice,  they  ought  to  pre- 
vail ;  if  not,  they  should  be  set  aside.  Now,  whatever  doctrines  the 
government  of  the  United  States  may  have  held  and  promulgated  on  this 
2 


/ 


10 

subject,  they  cannot  be  binding  upon  the  Indians,  unless  acknowledged 
by  them  to  be  binding,  or  unless  founded  in  the  immutable  principles  of 

justice.  , 

Let  us  suppose  that  the  kings  of  Great  Britam  had  issued  an  annual 
proclamation,  from  the  time  of  the  discovery  of  America  to  the  peace 
of  1783,  claiming  all  the  lands  in  Norll.  America  between  30  and  50 
north  latitude,  and  declaring  that  all  the  nations,  tribes,  and  communi- 
ties, then  residing  on  said  lands,  were  subject  to  the  laws  of  Great 
Britain,  and  thai  the  title  to  all  these  lands  was  vested  in,  and  of  right 
belonged  to,  the  crown  of  that  realm  ;  and  let  us  further  suppose,  that 
the  Government  of  the  United  States  had  issued  an  annual  proclamation, 
from  the  date  of  the  declaration  of  independence  to  the  present  day, 
applying  the  same  doctrine  to  our  advantage,  and  declaring,  that  all  the 
Indian  nations  within  the  limits  prescribed  by  the  peace  of  1703,  were 
subject  to  the  laws  of  the  United  States,  and  that  the  lands  of  which 
they  were  in  possession,  belonged  of  right  to  the  United  States,  so  long 
es  the  Indians  did  not  acknowledge  the  binding  nature  of  these  claims, 
the  mere  claims  would  have  amounted  to  nothing.     It  was  the  practice 
of  the  king  of  England,  during  several  centuries,  to  declare  himself,  (as 
often  as  he  issued  a  proclamation  on  any  subject  whatever,)  king  of 
Great  Britain,  France  and  Ireland.     Was  he  therefore  king  of  France  ? 
What  if  he  were  now  to  declare  himself  king  of  Great  Britain  and  China  ? 
It  would  be  a  cheap  way,  indeed,  of  acquiring  a  title,  if  merely  setting 
op  a  claim  would  answer  the  purpose. 

By  what  right  do  the  people  of  the>  United  States  hold  the  lands  wh>cb 
thcj  occupy  ?  The  people  of  Ohio,  for  instance,  or  of  Connecticut  ? 
By  the  right  of  occupancy  only,  commenced  by  purchase  from  the 
abonginal  possessors.  It  would  be  folly  to  plead  the  charters  of 
kings,  or  the  mere  drawing  of  lines  of  latitude  and  longitude.  The 
powers  of  Europe  have  indeed  acknowledged  our  right  to  our  coui.try. 
But  what  if  they  had  not  ?  Our  right  is  not  at  all  affected  by  their 
claims,  or  acknowledgements.  The  same  doctrine  is  applicable  to  the 
condition  of  the  Cherokees.  They  have  &  perfect  right  to  their  coun- 
try,— the  right  of  peaceable,  continued,  immemorial  occupancy  ;— and 
although  their  country  may  be  claimed  by  others,  ii  mtfy  lawfully  be  held 
by  the  possessors  against  ell  the  ^vorld.* 

•    The  Cherokees  need  not  fear,  however,  that  their  rights  are  in  dan- 
ger, as  a  consequence  of  any  principles  sanctioned  by  the  national 
legislature  of  the  United  States.     The  co-ordinate  branches  of  our 
government  have  not  yet  declared,  that  Indians  are  tenants  at  will.     On 
the  other  hand,  tho  whole  history  of  our  negotiations  with  them,  from 
the  peace  of  1783  to  the  last  treaty  to  which  they  are  a  party,  and  of 
I      all  our  legislation  concerning  them,  shows,  that  they  are  regarded  as  a 
■1      separate  community  from  ours,  having  a  national  existence,  and  posaes- 
\     sing  a  territory,  which  they  are  to  bold  in  full  possession,  till  they  volnn- 
\^  tsrily  surrender  it. 

•  Some  shallow  writers  on  thi«  subject  have  said,  that  "  the  Cherokees  hav« 
tnly  the  title  of  occupancy  j  just  as  though  tho  title  of  occupancy  were  not  the  best 
title  in  the  world,  and  the  only  origbal  foundation  of  every  other  Utle.  Every  reader 
of  Blackstone  knows  this  to  be  the  fact.  As  to  tho  past,  the  Cherokees  have  tm- 
mmorial  oeeupaneif;  as  to  thf  future,  they  have  a  perfect  right  to  otcupjf  their 
country  ind^nitelg.    What  can  they  desire  more  ? 


i 


knowledged 
principles  of 

1(1  an  annual 
to  the  peace 
I  30  and  50 
id  commiini- 
,W8  of  Great 
and  of  ri^ht 
lupposc,  that 
roclamationi 
present  day, 
;,  that  all  the 
1703,  were 
nds  of  which 
intes,  so  long 
Ihese  claims, 
the  practice 
3  himself,  (as 
irer,)  king  of 
f  of  France  T 
n  and  China  ? 
oertly  setting 

e  lands  which 
Connecticut  ? 
ase  from  the 
charters  of 
gitude.  The 
t  our  coui.^ry. 
cted  by  th«ir 
ilicable  to  the 
to  their  coun* 
ipancy ; — and 
iwfully  be  held 

Is  are  in  dan- 
f  the  national 
nches  of  our 
3  at  will.  On 
h  them,  from 
party,  and  of 
regarded  as  a 
;e,  and  posses- 
till  they  volwn- 


Cherokees  hav« 
were  not  the  best 
tie.  Every  reader 
irokees  have  im- 
tt  to  occupy  thtir 


II 

1  now  proceed  to  the  examination  of  treaties,  between  the  United 
Stp.tes  and  the  Cherokee  nation.  And  here  I  would  apprize  the  reader, 
that  the  case  can  never  be  fairly  and  fully  understood,  without  a  reference 
lo  every  material  article,  in  every  treuly  which  has  been  made  between 
these  parties.  Unless  such  a  reference  is  had,  no  reader  can  be  sure 
that  he  has  a  view  of  the  whole  ground  ;  and  a  caviller  might  object, 
that  there  had  been  omissions,  in  order  to  conceal  a  weak  purt  of  the 
case.  This  is  a  subject,  too,  which  the  people  of  the  United  States 
must  have^-^iienco  to  investigate.  When  measures  are  in  progress, 
which  have  a  bearing  on  the  permanent  rights  and  interests  of  all  the 
Indians,  it  must  not  bo  thought  tedious  to  read  an  abstract  of  the  solemn 
engagements,  by  which  wo  have  become  bound  to  one  of  these  aborigi- 
nal nations.  .  .    .     ,  • 

In  the  revolutionary  contest,  the  Cherokees  took  part  with  the  kmg 
of  Great  Britain,  under  whose  protection  they  then  considersd  them- 
selves, just  as  they  now  consider  themselves  under  the  protection  of  the 
United  States.  After  the  peace  of  1783,  it  does  not  appear  that  any 
definite  arrangement  was  made  with  this  tribe  till  the  year  1786.  In 
the  course  of  that  year,  the  old  Congress  ttjipointed  four  commissioners 
plenipotentiary,  men  of  distinction  at  the  south,  to  meet  the  head  men 
and  warriorc  of  the  Cherokees,  and  negociate  a  treaty  of  peace. 

The  parties  met  at  Hopewell,  now  in  Pendleton  District,  S.  C. ;  and, 
on  the  28th  of  November,  executed  an  instrument,  which  is  usually  cited 
as  the  treaty  of  Hopewell.  The  abstract  of  this  instrument,  with  some 
remarks  upon  it,  will  be  given  in  my  next  number. 


No.  in. 


Firrt  compact  between  the  United  State*  and  the  Cherokeei;  vii.  the  treaty  of 
Hopewell— Abstract  of  this  treaty— Reasont  for  thinking  it  itill  in  force— Th« 
Old  Congre»g  hcd  the  power  to  make  treaties- Argument  of  the  Secretary  of 
War— Meaning  of  the  phraaea  to  give  peaee,  and  to  aiioU 

The  title  of  the  treaty  to  which  I  referred  in  my  last  number,  is  in 
these  words : 

"  Articles  concluded  at  Hopewell,  on  the  Keowee,  between  Benjamin  Hawkins, 
Andrew  Pickens,  Joseph  Martin,  and  Lachlan  Mcintosh,  commissioners  plenipo- 
tentiary of  the  United  States  of  America,  of  the  one  part,  and  the  head  men  and 
warriors  of  all  the  Cherokees,  of  the  other  :" 

The  preface  to  the  articles  is  thus  expressed  : 

"The  commissioners  plenipotentiary  of  the  United  States  in  Congress  assem- 
bled, give  peace  to  all  the  Cherokeet,  and  receive  them  into  the  favour  and  pro- 
Uction  of  the  United  States  of  America,  on  the  following  conditions : 

Before  I  proceed  to  make  an  abstract  of  the  articles,  it  is  proper  to 
■ay,  that  in  regard  to  this  and  all  subsequent  treaties,  I  shall  be  as  brief 
as  appears  to  be  consistent  with  putting  the  reader  in  full  possession  of 
the  case.  The  more  material  parU  of  treaties  I  shall  cite  literally  ;  and 
these  will  be  distinguished  by  double  mverted  commas.    Other  parU 


12 

will  be  abrJdi^ed  ;  but  where  the  principal  words  of  any  abridgmenf,  are 
taken  from  the  treaties,  such  passages  will  be  marked  by  single  inverted 
commas.  The  loss  material  parts  will  be  expressed  as  briefly  as  possi- 
ble in  my  own  languaRO  ;  but  in  all  these  cases  I  pledge  myself  to  the 
£ti  Iciest  fidelity.  At  least  the  subject  of  every  article  shall  be  mentioned, 
that  the  reader  may  judge  of  the  general  aspect  of  the  whole,  as  well 
as  of  the  meaning  of  the  moat  important  parU.  The  treaty  of  Hope- 
well, then,  reads  as  follows  : 

Abt.  1.  The  head  men  and  warriori  of  all  the  Cherokees  ahall  reitore  all  tho 
priMners,  citiien*  of  the  United  States,  or  subjecU  of  their  allici,  to  their  entire 
liberty  :  they  Bliall  aUo  restore  all  tho  negroes,  and  all  other  property  taken  dur- 
ing  the  late  war,  from  the  citizens,  to  bi'.cTi  person,  and  at  such  time  and  place,  as 
the  commissioners  shall  appoint, 

"  Art.  2.  Tho  commissioners  of  the  United  States  in  Congress  assembled,  shall 
rtstore  all  the  prisoners  taken  from  the  Indians  during  the  late  war,  to  the  head 
men  and  warriors  of  the  Chorokoos,  as  early  as  is  practicable. 

"  Aet.  3.  The  said  Indians,  for  themselves,  and  their  respective  tribes  and 
towns,  do  acknowledge  all  tho  Chorokees  to  be  under  the  protection  of  the  Uni- 
ted States  of  America,  and  of  no  other  sovereign  whatsoever. 

"  Aax.  4.  The  boundary  allotted  to  the  Cherokees  for  their  hunting  grounds, 
between  tho  said  Indians  and  the  citiiens  of  the  United  States,  within  the  Jimita 
of  the  United  States  of  America,  is,  and  shall  be  the  following:"  This  boundary 
defines  tho  northern  and  eastern  limits  of  the  Cherokee  country. 

»»  Art.  5.  If  any  citizen  o*"  the  United  Statos,  or  other  person,  not  bemg  an  In- 
dian, shall  attempt  to  settle  on  any  of  the  lands  westward  and  southward  of  the 
Mid  boundary,  which  are  hereby  allotted  to  tha  Indians  for  their  hunting  grounds, 
or  having  already  settled  and  wi'l  not  remove  from  tho  same  within  six  months  af- 
ter the  ratification  of  this  treaty,  such  person  shall  forfeit  the  protection  of  the 
United  States,  and  tho  Indians  may  punish  him,  or  not,  as  they  please.  Then 
follows  a  proviso,  as  to  settlers  "between  tho  fork  of  French  Broad  and  Holston, 
whose  3aae  is  to  be  referred  to  Congress. 

"Art.  6.  If  any  Indian,  or  Indians,  or  persons  residing  among  them,  or  who 
shall  take  refuge  in  their  nation,  shall  commit  a  robbery,  or  murder,  or  other  ca- 
pital crime,  on  any  citizen  of  the  United  States,  or  person  under  their  protection, 
the  naUon,  or  the  tribe,  to  which  such  offender  or  offenders  may  belong,  shall  be 
bound  to  deliver  him  or  them  \ip,  to  be  punished  accordmg  to  the  ordinances  of  the 
United  States  ;"  »  provided  that  the  punishment  shall  not  be  greater,  than  if  tho 
crime  had  been  committed  by  a  citizen  on  a  citizen.'  ... 

«  Art.  7.  If  any  citizen  cf  tho  United  States,  or  person  under  their  protection, 
shall  commit  a  robbery  or  murder,  or  other  capital  crime,  on  any  Indian,"  he  shall 
be  punished  in  the  same  manner  as  if  "  the  crime  had  been  committed  on  a  citi- 
sen ;"  and  the  punishment  shall  be  in  the  presence  of  some  of  the  Cherokees,  wba 
■hall  have  due  notice  of  the  time  and  place. 

Art.  8.  No  punishment  of  the  innocent  for  the  guilty,  on  either  side,  "  except 
where  there  is  a  manifest  violation  of  this  treaty  ;  and  then  it  shall  be  preceded 
first  by  a  demand  of  justice ;  and  if  refused,  then  by  a  declaration  of  hostilities. 

«•  Art.  9.  For  the  benefit  and  comfort  of  tho  Indians,  and  for  the  prevention  of 
injuries  or  oppressions  on  tho  part  of  the  citizens  or  Indians,  the  United  States  m 
Congress  assembled,  shall  have  the  sole  and  exclusive  right  of  regulating  u.9 
trade  with  the  Indians,  and  managing  all  their  affairs,  in  such  manner  as  they 
think  proper.  ,     „^,      ...   „ 

"Art.  10.  Until  the  pleasure  of  Congress  be  known  respecting  tho  9th  article, 
a  temporary  provision  is  mado  for  tho  security  of  traders.  _ 

•  "Art.  11.  Tho  said  Indians  shall  give  notice"  of  any  designs  "termed  many 
neighbouring  tribe,  or  by  any  person  whomsoever,  against  tho  peace,  trade,  or  in- 
terests of  the  United  States.  r  <i.  it  ■ 
"  Art.  12.  That  tlie  Indians  may  havo  fiill  confide.ice  in  the  jusUce  of  the  Uni- 
ted States,  respecting  their  interests,  they  shall  have  a  rigl:  i  send  a  deputy  of 
their  shoice,  whenever  they  think  fit,  to  Congress. 


I  I'iftyWiWi 


- 


iridgmen'.  are 
Ingle  inverted 
efly  09  posai- 
myself  to  the 
)e  mentioned, 
vhole,  as  well 
ity  of  Hope- 


rettore  all  the 
,  to  their  entire 
orty  taken  dur- 
ne  and  place,  at 

iBsemblod,  shall 
rar,  to  the  head 

itivo  tribei  and 
lion  of  the  Uni- 

unting  groundi, 

irithin  the  limita 

This  boundary 

not  being  an  In- 
lUthward  of  the 
lunting  groundi, 
in  Biz  months  af- 
irottiction  of  the 
please."  Then 
d  and  Holiton," 

J  them,  or  who 
der,  or  othur  ca- 
their  protection, 
belong,  shall  be 
irdinancosof  the 
uter,  than  if  the 

their  protection, 
Indian,"  he  shall 
imitted  on  a  citi- 
I  Cherokeei,  v/to 

ler  side,  "  except 
ihall  be  preceded 
on  of  hostilities." 
the  prevention  of 

United  States  in 
f  regulating  the 

manner  as  they 

;  tho  9th  article," 

"formed  in  any 
laco,  trade,  or  in- 

istice  of  the  Uni- 
send  a  deputy  of 


13 

•»  Aet.  13.  The  hatchet  shall  be  forever  'juried,  and  the  neaoe  given  by  the 
United  States,  and  friendship  ro-establishod  liotwoen  tho  said  States  on  the  one 
part,  and  all  the  Cherokccs  on  the  other,  shall  bo  univprsnl  t  and  the  oiilrncting 
partie"  nhall  lue  tiioir  utmost  endeavours  to  maintain  tho  pcaro  given  as  aforesaid, 
and  fViendihip  ro-cstablivhed." 

These  articles  were  signed  by  the  four  commissioners  of  tho  United 
States,  and  by  thirty-seven  head  men  and  warriors  of  tho  Chorokees,  in 
the  presence  of  William  Blount,  afterwards  Oovornor  of  Tennessee,  and 
eight  other  witnesses.  In  the  formulary,  which  procodos  tho  signatures, 
the  articles  are  called  a  "  Definitive  Treaty." 

Among  the  documents  of  Congress,  published  during  tho  last  session, 
is  a  letter  from  tho  Honourable  Hugh  li.  White,  now  senator  in  (Con- 
gress, to  Mr.  John  Ross,  at  present  tho  chief  nmgistrnto  of  tho  Cherokee 
nation,  in  which  the  writer  argues,  at  some  length,  that  tho  treaty  of 
Hopewell  is  not  now  in  force,  on  account  of  its  having  boon  abrogated 
by  a  subsequent  war,  and  its  not  being  expressly  recognised  in  any  sub- 
sequent  treaty. 

Mr.  White  admits,  that  treaties  n.e  not,  as  a  a»ntter  of  course,  abro- 
gated by  war ;  but  he  thinks  that,  in  tho  case  before  us,  such  is  the 
natural  conclusion  to  be  formed,  after  attending  to  subsequent  treaties. 
I  must  be  permitted  to  question,  whether  he  would  have  como  to  this 
conclusion,  if  he  had  seen  all  the  subsequent  treaties,  and  duly  consi- 
dered them. 

The  following  reasons,  which  have  become  apnaront,  in  the  course 
of  this  investigation,  satisfy  me  that  the  treaty  of  Hopowoll  is  still  in 

force.  ...  . 

1.  In  all  the  subsequent  treaties,  there  is  no  intimation,  not  even  the 
most  obscure,  that  this  treaty,  or  any  other,  had  boon  abrogated,  annul- 
led, or  superseded.  .,,.,„ 

2.  In  the  second  treaty  of  Philadelphia,  1794,  tho  United  States  give 
money,  "  to  evince  their  justice,"  to  tho  Cherokees,  "  for  rolinquish- 
ments  of  land  by  the  treaty  of  Hopewell,  and  the  treaty  of  Holaton." 
Here  both  treaties  are  mentioned  in  precisely  tho  same  maimer ;  which 
rrould  hardly  have  been  the  cose,  if  one  of  them  had  boon  abrogated. 

3.  The  first  article  of  the  third  treaty  of  Tellico,  lOOfj,  is  in  these 
words :  "  All  former  treaties,  which  provide  for  tho  maintenance  of 
peace  and  preventing  of  crimes,  are,  on  this  occasion,  recognised  and 
continued  in  force."  The  treaty  of  Hopewell  was  a  former  treaty, 
which  was  directed  almost  wholly  to  the  maittienance  qf  peace  and  the 
preventtng  of  crimes. 

4.  In  the  second  treaty,  negociatcd  by  General  Jackson,  1817,  it  is 
stipulated,  that "  the  treaties  heretofore  [niodo]  between  tho  Cherokee 
nation  and  the  United  States,  r.re  to  continue  in  full  force."  Tho 
nhrase  "  the  treaties"  means  the  some  ns  all  trcntiea,* 

'  This  is  the  first  treaty  made  by  the  United  Stotes  with  either  of  the 
south-western  tribes,  or  nations.  '  The  State  of  Georgia  ho(l,  previously 
to  the  revolutionary  war,  entered  into  compacts  with  tho  Chorokees,  of 

•  These  reasons  were  not  insortod  in  the  number  as  originally  published.  They 
were  di»cpv».Ted,  as  the  examination  of  treaties  proceeded.  The  reader  will  pro- 
bably tbioi'.  tliem  unanswerable. 


u 

wWch  notice  will  be  talien,  at  the  proper  time.     After  the  peace  of 
1783,  and  before  the  adoption  of  the  federal  constitution,  the  Congress 
made  treaties  with  the  Indians,  itl  precisnly  the  same  n.annsr  as  with 
European  nations.     If  the  power  to  do  this  was  doubted,  or  denied,  the 
doubt  or  denial,  has  never  come  to  my  Itnowledge.     1  ho  treaty  ol 
Hopewell  was  negotiated  by  commissioners,  all  of  whom,  if  1  mistake 
not;  resided  at  the  soutii ;  and  I  have  never  heard  that  any  remonstrance 
was  offered  by  either  of  the  states  in  the  neighbourhood  of  the  '.hero- 
kees,  on  the  ground,  thpl  the  Old  Congress  had  no  power  to  agree  upon 
a  line  of  demarkation  with  the  Indians.     A  line  was  fixed,  in  the  4th 
article,  securing  to  the  Indians  the  undisturbed  po^,esuon  of  a  territory, 
which  appeared  on  the  map  to  be  a  part  of  Virginia,  the  two  C«rolinas, 
and  Georgia:  the  States  of  Kentucky,  Tennessee,  Alabama,  and  Mis- 
sissippi, not  having  then  been  formed.     If  this  treaty  now  stood  alone, 
and  the  relations  of  the  parties  had  not  been  changed  by  subsequent 
events,  no  white  man  could  have  "  attempted  to  settle  on  any  of  the 
lands  within  the  Cherokee  boundary,"  even  down  to  the  present  day, 
however  he  might  have  been  sustained  in  his  attempt  by  the  constituted 
authorities  of  any  or  all  of  the  states,  situated  in  the  neighbourhood  ot 
the  Cherokees.     Against  such  an  attempt,  the  Indians  would  have  been 
protected  by  the  faith  of  the  Confederated  Republic,     fhis  remark  is 
made,  simply  for  the  sake  of  drawing  the  attention  of  the  reader  to  the 
inviolability  of  the  Indian  territory,  as  strongly  implied  in  the  fifth 

ftrticlc 

From  the  phraseology  adopted  in  two  or  three  passages  of  the  trettty, 
the  conclusion  seems  to  be  drawn  by  the  present  Secretary  of  War,  that 
treaties  with  the  Cherokees  are  not  binding  upon  the  whites;  at  least, 
not  to  the  extent  of  their  literal  and  proper  meaning.  The  argument 
Btands  in  this  form.  The  Cherokees  fought  on  the  side  of  the  British, 
in  the  war  of  independence.  The  British  were  beaten;  and  therefore 
the  Cherokees  were  a  conquered  people.  To  f  conquered  people  the 
United  States  gave  peace;  and  therefore  the  United  Sta  es  are  not 
bound  by  the  very  articles  which  they  dictated.  They  allotted  a  boun- 
dary to  the  Cherokees;  and  therefore  the  United  States  are  not  under 
obligation  to  respect  the  boundary,  which  they  themselves  allotted,  lo 
refute  such  conclusions,  established  by  such  a  process  of  reasomng,  is 
unnecessary.     The  very  statement  of  the  argument  is  enough. 

It  is  true,  that  tho  commissioners  of  the  United  States,  in  several  trea- 
ties made  about  the  same  time,  express  themselves  raJther  haughtily, 
when  they  declare  that  they  give  peace  to  the  Indians.  The  fact  la  well 
known,  however,  that  the  whites  were  much  more  desirous  of  peace 
than  the  Cherokees  were.  The  inhabitants  of  our  frontier  settlements 
were  in  constant  dread  of  incursions  from  the  natives  of  the  forest. 
Impoverished  as  our  country  was  by  a  seven  years'  war,  it  would  have 
been  impossible  to  have  scoured  the  vast  wilderness,  from  the  settled 
country  to  the  Mississippi.  Any  force  which  could  then  have  been  sent, 
•would  have  fared  worse  than  the  army  of  St.  Clair  did,m  a  far  less  dan- 
gerous field,  nine  years  afterwards.  .  ,  „•  c  .i.„ 
The  Cherokees  could  not  have  set  up  for  nice  verbal  critics  of  the 
Enelish  language,  as  they  did  not  understand  a  word  of  it.  It  "ques- 
tionable, whether  on«  Indian  interpreter  in  ten  would  itake  "^ny  difler- 


the  peace  of 
the  Congress 
annsr  as  with 
or  denied,  the 
rho  treaty  of 
I,  if  I  mistake 
remonstrance 
of  the  Chero- 
to  agree  upon 
ed,  in  the  4th 
of  a  territory, 
two  Carolinas, 
ama,  and  Mis- 
w  stood  alone, 
by  subsequent 
on  any  of  the 
e  present  day, 
the  constituted 
ighbourhood  of 
3uld  have  been 
rhis  remark  is 
e  reader  to  the 
id  in  the  fifth 

;s  of  the  treaty, 
ry  of  War,  that 
'hites ;  at  least, 
The  argument 
of  the  British, 
:  and  therefore 
ered  people  the 
States  are  not 
illotted  a  bouH' 
i  are  not  under 
33  allotted.  To 
of  reasoning,  is 
lough. 

,  in  several  trea- 
ither  haughtily, 
rhe  fact  ia  well 
iirous  of  peace 
tier  settlements 
3  of  the  forest. 
,  it  would  have 
rom  the  settled 
have  been  sent, 
1  a  far  less  dan- 

1  critics  of  the 

it.     It  is  quea- 

:,ake  ^ny  differ- 


15 

ence  between  give  peace,  and  make  peace,  or  agree  to  a  peace.  Tlia 
Cherokees  doubtless  understood,  that  the  United  States  were  desirous 
that  there  should  be  an  end  of  fighting;  but  it  i»  incredible  that  they 
should  have  thought  there  was  lurkins,  under  (he  phrase  of  giving  peace, 
any  such  mysterious  implication  of  superiority  on  the  pnrt  of  the  whites, 
as  should  ultimately  exonerate  the  superior  from  all  obligation  to  keep 
faith  with  his  inferior.  Least  of  all  couhi  they  have  supposed,  that  there 
was  a  latent  power  in  this  phrase,  which  should  destroy  the  validity  of  all 
future  compacts  between  the  same  parties,  in  not  one  of  which  the 
insidious  phrase  is  to  be  found. 

The  phrase  to  give  peace  was  a  favourite  one  with  the  Romans,  and 
was  doubtless  copied  from  them.  I  think  Bonaparte  used  it  also  on  some 
occasions.  But  neither  the  Romans,  nor  Bonaparte,  so  far  as  I  know, 
ever  soberly  contended  that  a  treaty  was  to  be  interpreted,  otherwise 
than  according  to  the  obvious  and  proper  meaning  of  the  words,  merely 
because  one  of  the  parties  assumed  rather  a  haughty  air,  in  some  few 
instances  of  the  phraseology. 

As  to  the  word  allot,  it  is  said  to  have  been  commonly  used  in  the 
southern  States  as  synonymous  with  fx,  or  estfbliah.  To  say  that  a 
boundary  was  allotted  to  the  Cherokees,  was  no  more  than  to  say  that 
a  boundary  vins  established  or  agreed  upon;  for  the  boundary  is  not  said 
to  have  been  allotted  by  the  United  States.  It  may  have  been,  indeed  it 
must  have  been,  as  the  whole  scope  of  the  treaty  shows,  allotted  by  the 
consent  of  both  parties.* 


*  No.  IV. 

Apparent  inferiority  of  the  United  Staten  to  the  Chickataws — The  Cherokees  un- 
der the  protection  of  the  United  States — Hunting  grounds  a  good  designation 

.  of  land — Proofs  of  equality  of  rights  in  the  parties — Treaty  of  Holston,  or  se- 
cond compact  with  the  Cherokees,  1791 — Title  and  preamble — The  manner  in 

.    which  this  treaty  was  negociated  and  ratified. 

If  our  statesmen  are  about  to  interpret  treaties,  on  the  principle  of 
favoring  the  party  which  assumed  a  superiority,  they  must  take  care  lest 
there  should  be  some  very  unexpected  consequences. 

In  a  treaty  formed  between  the  United  States  and  the  Chickasaws,  in 
the  year  1801,  and  ratified  by  President  Jefferson  and  the  Senate,  the 
first  article  commences  thus  :  "  The  Mingo,  principal  men,  and  warriors 
of  the  Chiok.  saw  nation  of  Indians  give  leave  and  permission  to  the  Pre- 
sident of  t.<  ^  "  lited  States  of  America  to  lay  out,  open,  and  make  a  con- 
venient wago..  road  through  their  land."  After  stating  that  the  road 
"  shall  be  a  highway  for  the  citizens  of  the  United  States  and  the  Chick- 
asaws," and  that  the  Chickasaws  "  shall  appoint  two  discieet  men  as 

♦  The  correctness  of  this  crititism  on  the  word  allot  is  abundantly  prdvod,  by  a 
passage  of  an  act  of  Congress,  which  was  discovered  after  this  number  was  writ- 
ten. The  passage  makes  the  meaning  otlandt  allotted  to  the  Indent  to  be  synony- 
mous with  iandi  seeurtd  to  the  Indians. 


16 

ffuides,"  who  shall  be  paid  hy  the  United  States  for  their  services,  the 
article  closes  thus  :  "  Providc.l  always,  That  the  necessary  ferries  over 
?he  water  courses.  cro««ed  by  the  said  road,  shall  be  held  and  deemed  to 
be  the  property  of  the  Chickasaw  nation."  ,     r.i  •  i 

The  second  article  makes  a  pecuniary  compensation  to  the  Chicka-  - 
saws  for  "  their  respectful  and  friendly  attention  to  the  President  of  the 
United  Statrs  of  America,  and  to  the  request  made  to  them,  tn  huname, 

'"«r;jth.3^;Sjf  lltrH'^ianslate  these  passages  niithOi.ly,  and 
send  them  to  the  Kmpcror  of  China,  and  let  him  lay  tiic  matter  before 
hts  coun^-llors,  who  never  hear.l  of  the  United  States.  '» '"-T  wd  'J^ 
in  a  moment,  that  the  Min(,'o  of  the  Chickasaws  is  a  monarch,  who,  in  hm 
grea tconSJnsion,  has , "ranted the  humble  rc.,uestof the  Pre«.dent^on 
the  con.iition  that  the  petitioner  shall  make  a  pecuniary  compensation, 
and  pay  tribute,  under 'the  nameof  ferriage,  to  the  Chickasaws  as  often 
as  any  of  the  President's  peo,.le  pass  through  the  territory  of  the  king  of 

'*"  AcSi'nTto  the  recent  code  of  national  morality,  what  is  to  Be  the 
opfrail  otthis  Chickasaw  treaty.'  .Most  undoubtedly,  in  the  first 
place,  the  Chickasaws  »u,.v  close  up  the  road,  » •«  f"P"''>^7^j  °//„, 
freat;  to  the  contrary  notwithstanding.  Indeed,  H.'^y  must  have  ex- 
crcised  great  forbearance  already,  as  they  have  permitted  the  oad  to  be 
open  trcenty  seren  years,  solely  out  of  regard  to  this  treaty  ;  i^f^;^^°^ 
gia  has  waited  twenty-seven  years  before  taking  P^^^'^^^"  °^ 'i^Jj^-S 
?okee  territory,  out  of  complaisance  to  the  engagements  of  te  United 
States,  which  it  would  seem,  are  to  be  discarded  as  of  no  validity. 

In  the  second  nin.ce,  none  of  the  treaties  made  subsequently  by  he 
Chickasaws  aro  binding  upon  them  ;  -d  therefore  they  may  reelaimiall 
the  lands  which  they  have  ceded  to  the  Uni  ed  Statc^  Of  course,  he 
inhabitants  of  West  Tennessee,  who  now  live  o"/'-''^l''Vf7''.„™ 
wore  ceded  to  the  whites  by  the  Chickasaws,  must  immediately  remove. 
rfthecSaaaws  require  it.  The  reason  is  plam.  No  superior  can  be 
bound  to  an  inferior  ;  but  that  the  Chickasaws  are  the  superiors,  i.  evi- 
dent, as  the  Secretary  of  War  says  in  the  other  case,  because  the  em- 
nhaticlanguase"  of  tne  treaty  "cannot  be  mistaken. 
■^  But  it  may  be  said,  that  there  are  other  indications  in  the  treaty  of 
Hopewell,  that  the  United  States  assumed  a  superiority,  beside  the 
Phraseology,  in  the  instances  above  cited.  The  question  is  not,  be  it 
fcmerber?d.  whether  the  United  States,  at  to  time  of  he  treaty  of 
Hopewell,  were  a  more  powerful  nation  than  the  Cherokees  ;  but  whe- 
ther. bJng  a  more  powerful  naUon.  they  are  o.,  that  account  exempted 
from  the  obligation  of  treaties.  j     «u„  „«,♦-- 

The  Cherokees  did.  undoubtedly,  place  themselvc  under  the  protec 
tion  of  the  United  States,  in  the  third  article.  They  had  formerly  oeen 
under  the  protection  of  the  king  of  Great  Britain  ;  ""this  power  hd 
failed  them  It  was  natural  that  they  should  tccep  proffers  of  protec- 
tlon  from  some  other  quarter.  This  is  not  a  new  tJiing  in  the  world. 
From  the  time  of  Abraham  to  the  present  day,  there  have  been  aliances, 
offensive  and  defensive,  confederacies,  and  smaller  states  '«'?  "8  f°[  P™" 
tection  upon  the  plighted  faith  of  larger  ones.  But  what  «  'mp''«f  »n 
th^  iery  idea  of  pJot.-'tion  ?    Is  it  not  that  the  party  protected  is  to  have 


i 


lervices,  the 
ferries  over 
d  deemed  to 

the  Chicka- 
iident  of  the 
in  his  name, 

jthfully,  and 
Hitter  before 
licy  will  say, 
,  who,  in  hia 
'resident,  on 
)rnpensation, 
iws,  as  often 
if  the  king  of 

:  is  to  be  the 
in  the  first 
tions  of  the 
ust  have  ex- 
(le  road  to  be 
just  as  Geor- 
of  the  Che^ 
)f  tlie  United 
aiidity. 
uently  by  the 
y  reclaim|all 
f  course,  the 
lands,  which 
itely  ren'ove, 
perior  can  be 
leriors,  lo  evi- 
use  "the  em- 

the  treaty  of 
,  beside  the 
is  not,  be  it 
the  treaty  of 
■es ;  but  whe- 
unt  exempted 

er  the  protec- 
rormeriy  oeen 
lis  power  had 
ers  of  protec- 
in  the  world, 
leen  alliances, 
slying  for  pro- 
i  is  implied  in 
cted  is  to  have 


IT 

all  its  rights  secure,  not  only  against  others,  but  against  the  protector 
also  ?  If  some  rights  arc  yielded  as  the  price  of  protection,  is  it  not  that 
other  rights  may  be  preserved  with  the  greater  care  and  certainty  ? 

It  is  said  that  the  United  States  were  to  have  the  sole  and  exclusive 
right  of  regulating  trade  with  tlic  Cherokees.  True  :  but  this  was  ex- 
pressly declared  to  bo  for  the  benefit  of  the  Indians,  and  to  save  them 
from  injustice  and  oppression.  These  laudable  objects  were  gained  to 
a  considerable;  extent ;  and,  if  the  laws  of  the  United  Slates  on  this  sub- 
ject had  been  always  carried  into  full  execution,  the  condition  of  the  In- 
dians would  have  been  rapidly  improved,  as  a  consequence  of  this  very 
stipulation. 

It  is  said  that  the  lands  of  the  Indians  are  called  their  '<  huiUing 
ground* ;"  and  that  they  could  not,  therefore,  have  a  permanent  inte- 
rest in  lands  thus  described.  But  h(»w  docs  this  appear  ?  Tlie  treaty 
has  no  limitation  of  time,  nor  is  there  the  slightest  intimation  that  it  was 
to  become  weaker  by  the  lapse  of  years.  As  the  Indians  gained  their 
principal  support  by  hunting,  it  was  natural  to  designate  their  country 
by  the  phrase  "  hunting  grounds ;"  and  this  is  as  good  a  de<;ignation,  in 
regard  to  the  validity  of  a  title,  as  any  other  phrase  that  could  be  cho- 
sen. It  contains  the  idea  of  property,  and  baa  superadded  the  i''<ea  of 
constant  use. 

But  to  put  the  matter  beyond  all  question  at  once,  let  me  refer  to  two 
treaties  nyide  at  the  same  place,  by  three  out  of  four  of  the  same  Ameri- 
can Commissioners,  within  six  weeks  of  the  date  of  the  Cherokee  treaty. 
In  both  these  documents,  "lands"  are  allotted  to  the  Choctaws  and 
Chickasaws  "  to  lite  and  hunt  on.''  These  lands  were  secured  to  the 
Indians,  therefore,  so  long  as  any  of  the  race  survived  upon  earth. 

Having  been  occupied  some  time,  in  considering  the  indications  of 
superiority,  let  us  look  a  little  at  the  proofs  of  equality.  1  leave  to  a 
future  occasion  some  remarks  upon  the  words  treaty,  peace,  contracting 
parties,  J^c.  which  carry  with  them  sundry  most  important  significa- 
tions. 

The  two  first  articles  are  strictly  reciprocal.  Kacli  party  is  to  restore 
prisoners  of  war.  The  articles  would  be  i)ropcr,  in  a  treaty  between 
France  and  England. 

The  6th  and  7th  articlea  provide  that  crimes  committed  against  indi- 
viduals of  one  party,  by  individuals  of  the  other,  siiail  be  punished  in  the 
same  manner. 

The  8th  article  has  the  remarkable  provision,  that  no  retaliatory  mea- 
sures shall  be  adopted  by  cither  party,  unless  this  treaty  shall  be  vio- 
UOed;  and  even  then,  before  such  measures  can  be  adopted,  justice  must 
have  been  demanded  by  the  complaining  party  and  refused  by  the  other, 
and  "  a  declaration  of  hostilities"  must  have  been  made.  Thus  it  is  ad- 
mitted, as  well  as  in  the  two  first  articles,  that  the  Cherokees  have  the 
same  right  to  declare  war,  as  other  powers  of  the  earth  have.  To  de- 
clare war  and  make  peace  are  enumerated,  in  our  own  declaration  of 
independence,  as  among  the  highest  attributes  of  national  sovereignty. 
The  other  attributes  there  enumerated  are  to  form  alliances  and  to  esta- 
blish commerce.  It  is  a  curious  fact,  that  every  one  of  these  attributes 
was  exercised  by  the  Cherokees,  in  the  negotiation  of  the  treaty  of 
Hopewell. 


18 

The  praaent  doctrine  ii,  that  the  Indiana  were  reganled  aa  a  aort  of 
non-descript  tenants  at  will,  enjoying  by  permisaion  some  imperrcct  pri- 
vilege of  hunting  on  grounds  which  really  belonged  to  the  United  Statea. 
But  who  cvor  heard  of  tenants  at  willbein({  solemnly  admitted  to  have 
tho  right  of  declaring  war  upon  their  landlords  ?  These  tenants  were 
also  strangely  allowed  to  posscsa  the  right  of  punishing,  according  to 
their  pleasure,  any  of  thtir  landlords,  who  should  "  attempt  to  settle" 
upon  any  lands,  which,  it  is  now  contended,  were  then  the  absolute  pro- 
perty of  said  landlords.  But  I  shall  have  other  occasions  of  bringing  thia 
interpretation  to  the  teat. 

After  the  treaty  of  Hopewell,  white  settlers  pushed  forward  into  tho 
wilderness  in  the  neighbourhood  of  the  Indians,  difficulties  aroae ;  blood 
was  shed  ;  war  wns  declared  ;  the  new  setllemente  in  that  quarter  were 
in  a  state  of  grca!  alarm  and  anxiety. 

In  tho  mean  time,  the  new  constitution  had  gone  into  operation.  The 
treaty-making  power,  which  had  been  exercised  by  tl.3  Old  Congress, 
was  now  confuted  to  the  President  and  Senate  of  the  Unit  id  States. 
General  Washington,  who  always  pursued  a  magnanimous  policy  to- 
wards the  Indians,  as  well  as  towards  other  nations,  took  the  proper 
measures  to  establish  a  peace.  On  tho  2d  of  July,  1791,  the  treaty  of 
Ilolston  was  made  ;  and  it  nas  afterwards  ratified  by  President  Washing- 
ton and  the  Senate.     The  title  is  in  these  words : 

"  A  treaty  of  peace  and  friendship,  made  and  concluded  between  lie  President 
of  the  United  States  of  America,  on  the  part  and  behalf  of  the  said  Slates,  and 
the  undersigned  chiefs  and  warriors  of  the  Cherokee  nation,  on  the  part  and  be- 
half of  the  said  nation." 

P«P.AMtI.B. 

"  The  parties  being  dewrous  of  establishing  permanent  peace  and  tnendship  be- 
tween  the  United  SUtes  and  the  said  Ch«rokee  nation,  and  the  citizens  and  mem- 
bsrs  thereof,  and  to  removo  the  causes  of  war  by  ascertaining  their  limits,  <"">">»- 
king  othar  necessary,  just,  and  friendly  arrangements :— the  President  of  the  Uni- 
ted  SUtes,  by  William  Blount,  Governor  of  the  territory  of  the  United  States 
south  of  the  River  Ohio,  and  euperintendant  of  Indian  alTairs  for  the  Southern 
District,  who  is  vested  with  full  powers  for  these  purposes,  by  and  with  tho  advice 
and  consent  of  the  Senate  of  the  United  States;  and  the  Cherokee  nation,  by  the 
undersigned  chiefs  and  warriors  representing  the  said  nation,  have  agreed  to  the 

following  articles,  namely :" 

• 

I  have  thought  it  best  to  cite  the  whole  title  and  preamble,  that  the 
reader  may  see  in  what  manner  the  parties  to  this  instrument  saw  fit  to 
describe  themselves  ;  or,  more  properly,  in  what  manner  the  plenipoten- 
tiary of  the  United  SUtes,  with  the  President  and  Senate,  saw  fit  to  de- 
scribe these  parties :  for  it  will  not  be  pretended  that  the  Cherokees 
reduced  the  treaty  to  writing.  This  is  the  second  treaty,  which  was 
made  with  Indians,  by  the  government  of  the  United  States,  after  the 
adoption  of  the  Federal  Constitution.  The  first  was  made  with  the 
Creek  nation;  and  was  executed  at  New  York,  August  7th,  1790,  by 
Henry  Knox,  then  Secretary  of  War,  as  the  commissioner  of  the  Unitetl 
Stales,  and  twenty-four  Creek  chiefs,  in  behalf  of  their  nation.  In  com- 
paring these  two  treaties,  it  is  found,  that  the  title  and  preamble  of  the 
Cherokee  treaty  are  an  exact  transcript  from  the  other,  except  that 
"  Cherokee"  is  inserted  instead  of  "  Creek,"  and  the  word  "  kmgs, 
before  *•  chiefs  and  warriors,"  is  omitted. 


ta  a  lort  of 
n  perfect  pri- 
iiited  States. 
Itcd  to  have 
tenant!)  were 
tccording  to 
pt  to  settle" 
ibsolute  pro- 
bringing  tbia 

rard  into  tho 
aro36 ;  blood 
quarter  were 

sration.  The 
Id  Congress, 
nitid  States, 
us  policy  to- 
the  proper 
the  treaty  of 
snt  Washing- 


1  t&e  Pretideni 
id  States,  and 
le  part  and  be- 

friendship  be- 
lena  and  metn- 
itnita,  and  ma- 
mt  of  the  Uni- 
United  States 
■  the  Southern 
ritb  tho  advice 
nation,  by  the 
I  agreed  to  the 

ble,  that  the 
nt  saw  fit  to 
i  plenipoten- 
aw  fit  to  de- 
e  Cherokees 
f,  which  was 
es,  after  the 
de  with  the 
Ji,  1790,  by 
f  the  United 
}n.  In  com- 
amble  of  the 
except  that 
ird  "  kings," 


It 

AH  the  principal  articles  of  the  two  treaties  are  of  the  same  tenor,  and 
expressed  by  the  same  phraseology.  As  (iovurnor  Blount  made  the 
Cherokoa  treaty  alter  iho  mo<lol  of  tho  Creek  treaty,  there  oun  bo  little 
doubt  that  he  was  directed  to  do  so,  by  the  head  of  the  War  Depart- 
ment. It  is  morally  certain,  that  the  Creek  treaty  was  drawn  up,  not 
only  with  great  care,  but  with  the  concentrated  wisdom  of  a  cabinet, 
which  is  universally  admitted,  1  believe,  to  have  been  tho  ablest  and  the 
wisest,  which  our  nation  has  yet  enjoyed.  General  Washington  was  at 
iu  head,— always  a  cautious  man,  and  eminently  so  in  laying  the  foun- 
dations of  our  Union,  and  entering  into  new  relations.  This  treaty  was 
made  under  his  own  eye,  at  the  seat  of  government,  and  witnessed  by 
distinguished  men,  some  of  whom  added  their  official  stations  to  their 
names.  The  two  first  witnesses  were  "  Richard  Morris,  Chief  Justice 
of  the  Stote  of  New  York,"  and  "  Richard  Varick,  Mayor  of  the  City  of 
New  York." 

These  treaties  were,  in  due  season,  ratified  by  the  Senate  of  the 
United  States,  at  that  time  composed  of  men  di^tintruislied  for  their 
ability.  Among  them  was  Oliver  Ellsworth,  afterwards  Chief  Justice 
of  the  United  States  ;  William  Patterson,  afterwards  an  eminent  Judge 
of  the  Supremo  Court  of  the  United  Sfates ;  Rufus  King,  afterwards 
for  many  years.  Minister  of  the  United  States  at  the  British  Court ;  and 
William  Samuel  Johnson,  who  did  not  leave  behind  him  in  America,  a 
man  of  equal  learning  in  the  Civil  I^aw  and  the  Law  of  Nations.  These 
four  individuals,  and  six  other  senators,  had  been  membets  of  the  con- 
vention, which  formed  the  federal  constitution ;  though  Mr.  Ellswcith 
did  not  sign  that  instrument,  having  been  called  away  before  it  was 
completed.  He  was  a  most  efficient  member,  however,  in  the  various 
preparatory  discussions  ;  and  did  much  in  procuring  the  adoption  of  the 
constitution,  by  the  state  which  he  had  represented. 

The  reader  may  fairly  conclude,  that  the  document  in  question  is  not 
•  jumble  of  words,  thrown  together  without  meaning,  having  no  object, 
and  easily  explained  away,  as  a  pompous  nullity.  On  the  contrary,  it 
was  composed  with  great  care,  executed  with  uncommon  solemnity,  and 
doubtless  ratified  with  ample  consideration.  It  has,  therefore,  a  solid 
basis,  and  a  substantial  meaning.  That  meaning  ahall  be  considered  in 
a  Aiture  number. 


No.  V. 


What  is  a  treaty  ?— of  peace  .'—and  friendship  .'—What  it  a  nation  ?— The  United 
States  alopped— Tho  five  first  Presidents  admitted  the  Cherokees  to  be  a  nation 
—First  and  second  articles  of  the  treaty  of  Holston— Absurdity  of  the  recent 
pretensions  of  Georgia. 

HtTing  described  the  manner  in  which  the  first  Indian  treaty,  after 
the  organizati  four  present  form  of  goTemment,  was  negotiated  by 
the  cabinet  o.  jsident  Washington,  and  shown  that  it  was  ratified  by 
senators,  not  inferior  to  any  of  their  successors,  and  who  were  doubtless 


I 


20 

pecunarty  CBiilioiw  in  iho  firnt  Mcrcinc  of  the  treaty-nnkinjj  power ;  and 
linving  nsccrtairH-r),  by  a  miiuito  comparison,  llml  (Im  iinportimt  articica 
of  the  trenty  of  Holitlon.nxrciitoil  IcsH  flian  a  y«;nr  nftorwanlH,  nro  a  nnero 
trnnflcri|)t  of  tho  first  treaty,  I  proceed  now  to  inquire*)  What  u  tht 
meaniiif(  of  the  treaty  of  llolxton  f 

Tlio  title  and  preaiiiblo  wore  quoted  in  my  last  nnmbor.  The  title 
bcjjinflthus:  "  X  treatt/ of  jteacc  nnd friendship."  What  is  a  treaty  ?  It 
ia  a  compact  between  independent  communities,  each  party  acting 
through  the  medium  of  its  Rovernment.  No  instrument,  which  does  not 
come  within  this  definition,  can  bo  sent  to  the  Senate  of  the  United 
States,  to  be  acted  upon  as  within  the  scope  of  the  treaty-making 
,  power. 

If  the  agents  of  the  United  States  purchase  land  for  a  public  object, 
iuch  n  purchase  is  not  a  treaty.  If  the  State  of  VirRinia,  on  the  appli- 
cation of  the  United  States,  cedes  a  piece  of  land  for  a  navy  yard,  or  a 
fort,  a  compact  of  this  sort  is  not  a  treaty.  If  the  state  of  Georgia  cedea 
to  the  United  States  all  its  claim  to  territory,  cnouj^h  for  two  large 
new  states,  and  the  ( 'nited  States  ai^reo  to  make  a  compensation  there- 
for, such  cession  and  a<rreement  are  not  n  treaty.  Accordingly,  such 
negotiations  are  carried  on  and  completed  by  virtue  of  laws  of  the  Na- 
tional and  State  Legislatures.  Of  course,  compacts  of  this  kind  are 
never  called  treaties;  and  the  idea  of  sending  them  to  the  Senate  of  the 
United  States  for  ratification,  would  be  preposterous.  One  of  the  con- 
federated stifles  is  not  an  indcpfndent  community  ;  nor  can  it  make  a 
treaty,  either  with  the  nation  at  large,  or  with  any  foreign  power.  -But 
the  Indian  tribes  and  nations  have  made  t>  ities  with  the  United  States 
during  the  last  lorty  years,  till  the  whole  number  of  treaties  thus  made 
far  exceeds  a  hundred,  every  one  of  which  was  ratified  by  the  Senate 
before  it  became  obligatory.  Every  instance  if  this  kind,  implies  that 
the  Indian  communities  had  governments  of  their  own ;  that  the  Indians, 
thus  living  in  communities,  were  not  subject  to  the  laws  of  the  United 
States ;  and  that  they  had  rights  and  interests  distinct  from  the  rights 
end  interests  of  the  people  of  the  United  States,  and,  in  the  fullest  sense, 
public  and  national.  All  this  is  in  accordance  with  facts ;  and  the 
whole  is  implied  in  the  single  word  treaty. 

Again ;  the  parties  on  the  banks  of  the  Holston  signed  a  treaty  "  of 
peace."  It  is  matter  of  history,  that  there  had  been  fighting  and  blood- 
shed. These  acts  of  violence  were  not  denominated  a  riot,  a  tedition,  a 
reMlion ;  they  constituted  a  war.  The  settlement  of  the  difficulty  was 
not  called  a  pardon,  an  amnesty,  a  suppression  of  a  riot,  a  conviction,  a 
punishmeiU ;  it  was  called  a  peace.  Nor  is  it  said  here,  as  in  the  treaty 
of  Hopewell,  that  the  United  States  "  give  peace."  There  is,  in  the 
title  and  preamble,  every  indication  of  perfect  equality  between  the  par- 
lies. In  point  of  fact,  the  whites  were,  at  that  moment,  much  more 
desirous  of  peace  than  tho  Cherokecs  were. 

This  is  also  a  treaty  of  "friendship;"  which  implies,  that  the  Chero- 
k6e8  were  not  only  a  substantive  power,  capable  of  making  peace  and 
declaring  war,  but  that,  after  the  treaty  was  executed,  they  were  ex- 
pected to  remain  in  the  same  state.  It  was  not  a  surrendry  of  their 
national  axistence,  but  the  establiabment  of  amicable  i-elations  to  remain ; 


ll'iiiaf J~i;t /"I- 


1 


power ;  and 
tiint  articliis 
,  nre  a  mere 
Vhat  it  the 

.  Tho  title 
treaty  ?  It 
>arty  acting 
ich  does  not 
'  tho  United 
eaty-making 

uhlic  object, 
)n  the  nppli- 
y  yard,  or  a 
eorgia  cedes 
r  two  large 
sation  there- 
(lingly,  such 
s  of  tho  Na- 
ils kind  are 
senate  of  the 

of  the  con- 
in  it  make  a 
lower.  -But 
Jnitcd  States 
es  thus  made 
y  the  Senate 

implies  that 
:  the  Indians, 
f  the  United 
m  the  rights 
fullest  sense, 
;ts ;  and  the 

a  treaty  "  of 
ig  and  blood- 
a  aedition,  a 
ilifficultv  was 
conviction,  a 
in  the  treaty 
sre  is,  in  the 
ireen  the  par- 
,  much  more 

tt  the  Chero- 
ng  peace  and 
lioy  were  ex- 
ndry  of  their 
na  to  remaiq ; 


•Ji 

and,  so  far  as  this  treaty  could  opcrntn,  the  amicnhlo  relational  thua 
acknowledpfcd  to  exiitt.  wnro  In  continuo  thmiinh  nil  t'litiirn  time. 

Who  arc  tlir  partii-.i  to  llim  "  tnalf/  of  imier  and  frknthkip.'"'  The 
I'rciiidvnt  acts  in  Ix'linlf  of  orio  of  llit-  p.'irti<>.<<,  and  "  the  tiiidorviKncd 
chiefs  nnd  warriors  of  tho  Clirrokcc  Nation  of  Indinnn,  on  the  i>art  and 
behalf  of  taid  A(»<ioii."  Tho  Chorokccs  then  am  a  nation ;  itnd  tho  best 
definition  of  a  nation  is,  that  it  is  a  communittj  tiring  under  itt  oum 
laws, 

A  nation  may  be  a  powor  of  tho  first,  Hccond,  third,  or  tenth  rate.  It 
may  be  very  feeble,  and  totally  incompetent  to  defend  its  own  rights. 
But  so  long  as  it  has  distinct  riuhts  end  interestn,  and  manages  its  own 
concerni,  it  is  a  substantive  powor ;  and  should  bo  renpoctcd  as  such. 
Any  other  rule  of  interpretation  would  make  foreo  the  only  arbiter.  St. 
Marino,  in  Italy,  is  described  in  our  best  cfizcttccrH,  as  "  a  small  but  in- 
dependent republic ;"  and  yet  it  has  not  half  so  many  people,  nor  the 
three  hundredth  part  so  much  land,  as  tho  (."licrok"e  nation  now  has. 

It  has  been  said,  indeed,  that  tlio  Indians,  beini;  an  iincivili/.oti  people, 
aro  not  to  bo  ranked  a.-nong  nations.  But  this  is  said  gratuitously,  and 
without  tho  least  shadow  of  proof.  How  many  treaties  did  Julius  C'Ksar 
make  with  savage  tribes,  who  were  greatly  inferior,  in  every  intellec- 
tual and  moral  respect,  to  the  Cherokecs  of  the  present  day  ?  There 
is  as  little  reason  as  truth  in  the  objection.  Ila^  not  God  endowed 
every  community  with  some  rights  ?  and  aro  not  these  righis  to  b** 
regarded  by  every  honest  man,  and  by  every  fair-minded  and  honourable 
ruler  ? 

But,  above  all,  the  objection  comes  to-'  late.  The  United  States  are, 
as  a  lawyer  would  say,  estopped,  (icneral  Washington,  with  his  cabinet 
and  the  Senate,  pronounced  the  Cherokces  to  be  a  nation.  It  does  not 
appear,  that  a  doubt  ever  crossed  the  mind  of  a  single  individual*  for 
nearly  forty  years,  whether  this  admission  were  not  perfectly  correct. 
Presidents  Adams,  (the  elder,)  Jefferson,  Madison,  and  Monroe,  all  ad- 
mitted tho  Cherokecs  to  bo  a  nation,  and  treated  with  them  as  such. 
The  Secretary  of  War,  (now  Vice  President  of  the  United  States,)  ne- 
gotiated the  last  treaty  with  the  Cherokee!),  ond  affixed  his  signature  to 
it.  In  this  treaty,  as  in  every  preceding  one,  the  Chcrokees,  are  ad- 
mitted to  be  a  nation,  and  there  is  not  a  word  in  any  of  these  solemn 
instruments,  which  has  tho  most  distant  implication  of  the  contrary.  If 
the  United  States  are  not  bound  in  this  case,  how  is  it  possible  that  a 
party  should  ever  be  bound  by  its  own  admissions  ?  Tho  truth  is,  that 
if  our  country  were  bound  to  France,  or  England,  by  any  stipulatiooi 
however  mortifying  to  our  pride,  or  disadvantageous  to  our  interest,  and 
the  meaning  of  the  obnoxious  clause  were  supported  by  one  fiftieth  part 
of  tho  evidence  by  which  it  can  be  proved  that  the  United  Statea  have 
recognised  the  national  character  of  the  Cherokecs,  no  lawyer,  civilian, 
or  politician  even,  would  risk  his  reputation,  by  attempting  to  dispute  or  , 
evade  the  meaning.  We  should  be  obliged  to  submit  to  inconveniences 
resulting  from  our  own  stipulations,  till  we  could  remote  them  by  sub- 
sequent negotiations.  If  we  have  been  overreached  by  the  Cherokees, 
in  BO  many  successive  treaties ;  if  they  have  had  the  adroitness  to  get 
from  us  repeated  acknowledgments  of  their  possessing  a  character  and 
rights,  which  they  did  not  possess ;  if  General  Washington,  and  a  long 


|«4'V 


23 

line  of  £8tinfftii«^««t  itii(««ni«n.  hav«  made  ineautiout  ■dmiiniont ;  and 
if,  in  Ihw  way,  wo  imv«  ina<io  a  lifir({aiii  wliicli  Iwam  liani  upon  o*ir«elvci 

gtill,  our  (mmla  and  mmiU  ttiitily  against  utt.  Wo  must  lie  Mnir«  <:au- 
tioua  ihe  next  limo.  "  Ho  that  awearctli  to  his  own  hurt,  and  c'-  imilh 
not,"  IS  declared  in  Holy  Writ  to  giv*  mte  proc."  that  ho  ia  an  upriKhl 
nan,  and  will  rocrivo  iho  appnihntioii  of  God.  In  K  word,  if  VS  unhin  •• 
ton  and  Knox,  Ilnnidton  nnd  J«tr«:r-«on,  compromittod  tii<  utercsta  of 
this  country,  by  indwcreft  and  thouKhllc^M  itiipiihtinns,  .mml  gain 
wisdom  by  exfierionce,  and  appoint  moro  faithful  and  more  considerato 
public  agents  horcafter. 

Having  inquired  into  the  meaning  of  the  title  and  preamble  of  th« 
treaty  of  Holstun,  let  me  now  direct  the  atlentioii  of  the  reader  to  ita 
provisions : 

"  A»T.  I.  There  ehall  b«  perpetual  peace  and  (Vicndihip  between  all  the  ciliteiw 
of  the  United  State*  of  /.inoriua,  and  all  Uie  inOivtduaU  coiupoeing  Ihu  whole 
Cherokee  nation  of  Iniliani.'* 

If  the  "  pence  nnd  frirndship"  were  to  bo  "  perpetual,"  the  future 
cuntinunnco  of  the  "  Cherokee  nation  of  Indians"  for  an   indefinite 
period,  was  taken  to  bo  n  matter  beyond  all  question.     It  appears  from 
this  article,  as  well  as  from  the  preamble,  th-»  "Indians"  mnyconuti- 
tute  a  "  nation."     The  word  tribe,  when  used  to  denote  a  community, 
living  under  its  oxen  laws,  is  of  equal  force  with  the  word  nation  ;  and 
in  this  sense  it  is  to  be  takon,  wherever  it  occurs,  in  the  courae  of  my 
remarks.     But  the  Cherokee  nation  had  been  divided,  from  time  imme- 
morial, into  seven  clans,  sometimes  called  trihea,  nnd  the  Choctaw  na- 
tion into  two  such  tribes.     This  fact  occasioned  some  of  the  peculiar 
phraseology  in  the  treaty  of  Hopewell.     As  the  seven  clans,  or  tribes, 
of  the  Cherokees  were  united  under  one  povemment,  they  were  all 
comprehended  under  the  phrase  of  "  the  whole  Cherokee  nation  of  In- 
dian*;"  nnd  the  word  tribe  is  not  found  in  the  treaty  of  Ilolston.     The 
word  nntion  ia  applied  to  the  Cherokees,  in  this  single  instrument, 
no  less  thnn  twenty-seven  liratM     «^d  a!  /aya  in  ita  large  and  proper 
sense. 

••  AaT.  *.  The  undersigned  chi.ii*  tij.-  warnon,  for  themselvee  and  all  parte  of 
the  Cherokee  nation,  do  acknowledge  theroaolTei  and  the  said  Cherokee  nation, 
to  be  under  the  protoction  of  the  UniUd  SUUe  ot  America,  and  of  no  other  aove- 
reign  whatwever ;  and  they  al»o  mipulato,  that  the  laid  Cherokee  nation  will  not 
hold  any  treaty  wi' Ji  any  foreign  power,  individual  fcUate,  or  with  individuals  of  any 
mate." 

1  remarked  upon  the  treaty  of  Hopewell,  that  it  has  always  oeen  a 
common  thing  for  weak  states  to  rely  upon  the  protection  of  stronger 
ones.  When  a  weak  sta'.e  acknowledges  a  superior,  it  is  bound  in  good 
.  faith,  to  act  in  accordance  with  that  acknowledgment ;  but  it  is,  in  all 
other  respects,  independent  of  the  superior.  In  other  words,  it  retains 
all  the  rights,  wbich  it  has  not  surrendered.  This  is  the  dictate  of  com- 
mon sense,  and  is  decisively  stated  by  Vattel. 

What  is  to  be  understood  by  the  Cherokees  being  under  the  protec- 
tion of  the  United  States,  will  very  fully  appear  in  the  course  of  this 
investigation.     In  the  very  article  just  quoted,  the  Cherokees  bind  thein- 


^iMiaiiaiMMa 


imionf;  and 
lun  i>urii«lvci 
ic  iinir«  <:au- 
ind  c''  mjilli 
■  an  uprinhl 
,  if  VNttHhin  • 

uitflrett*  nf 
'.  inu<it  Kdin 
B  consideratv 

imble  of  the 
reudcr  to  ita 


I  all  the  ciliMM 
ling  tlitt  Mhula 


,"  the  future 
an   indefinite 
appears  from 
"  mnyconsiti- 
a  eommunily, 
1  nation ;  and 
courae  of  my 
tn  tiino  imme* 
Choctaw  na- 
f  the  peculiar 
ans,  or  tribes, 
they  were  all 
nation  of  In- 
lolston.     The 
le  instrument, 
ge  and  proper 


I  and  all  part*  of 
[;beroke«  nation, 
of  no  othar  sove- 
le  nation  •?ri\\  not 
ndividuaU  of  any 


always  been  a 
ion  of  stronger 
I  bound  in  good 
but  it  is,  in  all 
rorda,  it  retains 
dictate  of  com- 

der  the  protec- 
!  course  of  this 
keea  bind  tbein- 


* 


23 

seUeM  not  to  hold  any  treaty  "  with  any  foreign  power,"  nor  with  any 
••  individual  Htatf."  This  was  a  very  iiiatcriiil  ruhiiquiahnient  of  their 
natural  ri;jhts  ;  l)ut  it  wua  <un(KM«d  to  be  countt-rbaiancnd  by  various 
udvant'iKrH  aecurud  to  them  by  ihe  trniity,  partiruKiri;  by  tlio  solemn 
guaranty  in  the  povrntli  nrtifle,  wliicli  will  Ix*  considered  in  iti«  order. 

it  ia  now  roiitcnded  by  the  politician.-  of  (l  'ora'ia,  that  the  United 
States  liiid  no  |iower  to  HKiko  trenticit  witii  Imlians  "  living,"  as  tlicy 
oxpreM  H.**wUMn  the  limilt  of  a  torereiffii  ahd  i»if^itfndtnt  Slate," 
Thus,  according  to  the  present  doctrine,  iieneriil  VVuNhiiigton  and  his 
advisers  made  a  solemn  compact,  which  tliuy  called  n  treaty,  with  cer- 
tain Indians,  wh.tin  they  culled  the  Cherokee  nation.  In  this  coni|tact, 
the  United  States  bound  the  Cherokees  nut  to  treat  with  Georgia.  Forty 
years  have  elapsfd  without  any  complaint  on  t)ic  part  oi  Georgia,  in  re- 
gard to  this  exercise  of  the  treaty-making  power  ;  but  it  is  now  found 
that  the  ('horokecs  are  tenants  at  will  of  (Jeorgia  ;  that  (ieorgiu  is  the 
only  community  on  earth  that  could  treat  with  the  Cherokees ;  and 
that  they  must  now  be  delivered  over  to  her  discretion.  The  United 
Stotes,  then,  at  the  very  commencement  of  our  federal  government, 
bound  the  Cherokees,  hand  and  foot,  and  have  held  them  bound  nearly 
forty  voars,  and  have  thus  prevented  their  making  terms  with  Georgia, 
which  might  doubtless  have  been  easily  done  ut  the  time  of  the  treaty 
of  Ilolslon.  Now  it  is  discovered,  forsooth,  that  the  United  States  had 
no  power  to  bind  thtm  at  all. 

If  such  an  interpretation  is  !o  bo  endured  by  an  enlightened  people  in 
the  nineteenth  century,  and  if,  in  consequence  of  it,  the  Cherokees  are 
to  bo  dolivorcd  over,  bound  and  man  icled  ;  if  this  is  to  bo  done  in  the 
face  of  day,  and  before  the  eyes  of  all  mankind,  it  inuct  be  expected 
that  shouts  and  hisjies  of  shame  and  opprobrium  will  bo  heard  in  every  part 
of  the  civilized  world.  Pettifogging  is  no  very  honorable  business,  when 
practised  in  a  twenty  shilling  court ;  but  what  aoit  of  pettifogging  would  this 
be  .'  Tho  Cherokees  have  fully  and  honorably  fulfilled  their  engagomenta. 
They  have  sold  us,  at  a  moderate  price,  three  quarters  of  their  country, 
comprising  all  tho  best  parts  of  it.  They  have  submitted  to  a  qualified 
dependence.  They  have  abstained  from  «  holding  any  treaty  with  any 
foreign  power,  or  individual  state'  Aijd  now,  when  the  United  States 
are  called  upon  to  fulfil  their  part  of  the  contract,  and  defend  the  Chero- 
kees from  Georgia,  it  is  gravely  proposed  to  say  to  these  oppressed  In- 
dians, "  We  have  no  power  to  defend  you.  It  is  true  we  promised  to 
do  it ;  and  you  aonfided  in  our  promise  ;  and,  in  that  confidence,  made 
valuable  concessions  to  us.  But,  really,  we  never  had  the  power  to 
make  such  a  promise." 

Has  fraud  of  this  barefaced  and  most  disgraceful  character  been  per- 
petrated in  the  sanctuary  of  our  dignified  Senate,  and  by  means  of 
solemn  treaties  ratified  in  mockery  ?  the  eflect  of  which  is  to  dispossess 
a  "  nation"  of  its  hereditary  lands  and  government,  and  to  drive  the  in- 
dividuals of  which  it  was  composed,  (who  are  called  in  the  preamble 
already  cited,  "the  citizens  and  ntembera  thereof) — To  drive  away 
these  "  citizena"  as  outcasts  and  vagabonds  ? 

But  such  an  interpretation,  so  insulting  to  the  Cherokees  and  to  the 
common  sense  of  mankind,  and  so  cruel  in  its  operation,  cannot  be 
admitted.  Washington  was  neither  a  us-irper,  nor^an  oppressor;  nor 
were  Ellsworth  and  his  fellow  senators,  cither  novices  or  cheats. 


4p. 


..  ^_*# 


24 


No.  VI. 

Treaty  of  Holaton  continued— Arliclci  of  boundary  and  »oi»ion-The  nature  of* 
•e«8ion-Grant  of  a  roa.l-Uuuulutiou  of  tradc-ArticloB  of  guaranty-lmpor- 
tanco  of  this  article— Na-uro  of  a  guaranty— luitance  of  Buonaparte  and  Swit- 
zerland. 

I  proceed  in  the  consideration  of  the  treaty  of  Ilolston.  The  third 
article  provides,  that  "  the  Cherokee  nation  shall  deliver"  up  "  all  per- 
Bons  who  are  now  prisoners,  captured  by  them  from  any  part  of  the 
United  States  ;"  and  "  the  United  States  shall  restore  to  the  Cherokees 
all  prisoners  now  it>  captivity,  whom  the  citizens  of  the  United  States 
have  captured  from  them."  A  period  of  about  nine  months  was  allow- 
ed for  a  compliance  with  t'.iis  article.  Hero  the  most  entire  reciprocity 
exists,  precisely  as  it  is  found,  usually,  in  treaties  of  peace  between 
European  powers. 

"  Art.  4.  The  boundary  between  the  citizen,  of  the  United  States  and  the  Cher- 
okee  nation  is  and  ^hall  be  a,  follows :"  [Hero^the  ^"""•^^f  " fc^ri^co^^^^^ 
ia,  in  part,  the  same  with  that  in  the  treaiy  of  Hopewell ;  b>'t  the  Cherokee  coun- 
try  on  the  northeast  is  considerably  curtailed.  Here  had  been  the  «»'<'**"  °"; 
ing  the  interval  betweon  the  two  treaties.  A  tract,  which  "  n°'*,^»'«  "'"^I^Pjg 
of  Tennessee,  and  which  probably  contame  a  population  of  more  than  200,000 
aouls.  was  still  retained  by  the  Cherokees.]  .  . 

The  wUcle  provides  that  the  boundary  ihaU  bo  a«ierta,nod  and  marked,  and 

""""ArXintder'to  extinguish  forever  all  clain,.  of  the  Cherokee  nation,  or  any 
Bartlhe  eof,  to  any  of  the  land  lying  to  the  ri(rht  of  the  l.no  above  described,  be- 
SSling  as  aforesaid,  at  the  Currahee  mountain,  it  \«  »|««j'y  f  K"'''?,!^/^' '"  "tS^. 
tion  to  the  consideration  hf-otoforo  made  for  the  said  land-  the  United  States  will 
'rsfcnaS?  valuable  goods  to  be  immediately  delivered  to  Ihe^^^^ 
and  warriors,  for  the  use  of  their  nation  ;  and  the  siu.  United  States  will  also 
cause  the  suri  of  A1,000  to  be  paid  annually  to  the  said  Cherokee  nation.  And  the 
undersigned^hlef!  and  warrior  do  hereby,  for  themselves  and  the  Cherokee  na- 
Son  S  heirs  and  descendants,  for  tho  consideration  above  mentioned,  release, 
irtclaim,  relinquish,  and  cede  all  the  land  to  tho  right  ot  U.e  Une  described,  and 
beginning  as  aforesaid." 

One  object  of  the  treaty  was  declared  in  the  preamble  to  be  to  »  as. 
certain  tU  limita  of  the  Cherokees."  In  the  article  just  quoted,  the 
SS  a  e  defined  on  the  north  and  east  ;  that  is,  on  those  sides  where 
he  white  settlers  were  approaching  the  borders  of  th«C^.7kee  coun- 
try On  the  south  and  west  the  Cherokees  were  imited  by  the  country 
of  their  Creek  and  Chickasaw  neighbors  ;  so  that  there  would  have 
been  no  propriety  in  even  mentioning  the  subject  here. 

At"hi  close  of  tho  article,  the  Cherokee  chiefs.  »  for  themselves  and 
the  whole  Cherokee  nation,  their  heirs  and  descendants,  release,  quit 
claim,  relinquish,  and  cede"  a  certain  P"'t'on  of  their  country  ;  that 
very  country  which  had  been  called  «  hunting  grounds"  in  the  treaty  of 
Hopewell  and  of  which,  as  it  is  now  pretended,  the  Cherokees  were 
■tenantTat  will.  Was  it  over  before  heard,  that  a  teno.nt  at  will  reUast^d 
and  ceded  land  to  the  rightful  owner  ?  ,       .  j    i.  „.j  :„ 

The  phrascclogy  hcre%.sod  not  only  implies  that  the  word  ffed^m 
tho  pre  ious  trealy,  meant  no  more  than  that  the  boundary  oi  the  Che- 
rok^Tountry  J.  fixed  or  d4ned,  by  the  article  in  which  it  was  used ; 


ttmrnm 


e  ntture  ofa 
inty — Impor- 
tta  and  Swit- 


The  third 
ip  "  all  per- 
parl  of  the 
9  Cherokees 
inited  States 
8  waa  allow- 
3  reciprocity 
ace  between 


and  the  Ch«r- 
icribed,  which 
Iherokee  coun- 
at  of  war  dur- 
le  central  part 

than  200,000 

d  marked,  and 

nation,  or  any 
I  described,  be- 
1  that,  in  addi- 
ited  States  will 
lorsigncd  chiefs 
States  will  also 
lation.  And  the 
B  Cherokre  na- 
itioned,  release, 
I  described,  and 


0  be  to  *'  aa- 
t  quoted,  the 
B  sides  where 
lierokee  coun- 
)y  the  country 
e  would  have 

hemselvea  and 
9,  release,  quit 
country  ;  that 
n  the  treaty  of 
lerokees  were 
it  will  releaaed 

3rd  allotted,  in 
ry  of  the  Che- 

1  it  was  used ; 


>«3gBj, 


23 

but,  it  implies  aUo,  in  the  strongest  manner,  Uiat  the  sovereign  power  of 
the  Cherokees  over  their  territorj  was  unqiiestionable.  The  word 
"  cede"  is  the  most  common  and  operative  wore',  in  all  transfers  of  terri- 
tory from  one  nation  to  another.  Unless  explained  and  limited,  it  con- 
veys the  right  of  sovereignty.  Tlius,  in  cessions  of  small  portions  of 
land  to  the  general  government,  for  navy  yards,  &,c.  the  several  States 
are  in  the  practice  of  reserving  certain  rights ;  such  as  the  right  of  en- 
tering to  apprehend  criminals,  &-c.  implying  that  the  wokI  cede  vvould, 
ex  vi  tenninU  convey  to  the  general  government  all  the  rights  of  sover- 
eignty. But  no  party  can  "onvey  what  it  does  not  possess  ;  and  it  would 
have  been  absurd  for  the  United  States  to  ask  and  accept  a  cession, 
without  admitting  that  the  Cherokees  had  power  to  make  one.  This 
article  expressly  declares  that  thq  agreement  was  entered  into,  the  ces- 
sions made,  and  the  compensation  given  "  to  extinguish  forever  all 
oloims  of  the  Cherokee  nation"  to  the  lands  thus  ceded.  The  Chero- 
kees are  acknowledged,  then,  to  have  had  claims,  not  cancelled  by  war, 
— not  swept  away  by  the  superior  force  of  thn  United  States, — never 
before  surrendered  :  claims,  which  the  solemn  sanction  of  treaties  was 
deemed  necessary  to  extinguish. 

"  Akt.  5.  It  is  stipnlated  and  agreed  that  the  citizens  and  inhabitants  of  the 
United  States  shall  have  a  free  and  unmolested  use  of  a  road  from  Washington 
district  to  Mero  district,  and  the  navigation  of  the  Tennessee  rivur." 

This  is  another  very  curious  provision,  if  we  are  to  believe  that  the 
Cherokees  are  merely  tenants  at  will,  and  the  people  of  the  United  States 
the  rightful  owners.  But  upon  the  only  tenable  ground,  viz.  that  the 
Cherokees  bad  a  perfect  title  to  the  soil,  with  undoubted  rights  of  sover- 
eignty over  it,  the  article  is  intelligible  and  reasonable.  The  people  of 
the  United  States  wanted  i  free  passage  through  a  particular  part  of  the 
Cherokee  territory  ;  and,  as  the  parties  now  sustained  amicable  relations, 
such  a  passage  was  granted  by  a  treaty  stipulation. 

Art.  6.  It  b  agreed  on  the  part  oftho  Cherokees,  that  the  United  States  shall 
have  the  sole  anu  exclusive  right  of  regulating  their  trade." 

By  the  constitution  of  the  United  Slates  it  had  been  provided,  that 
Congress  should  have  power  to  regulate  commerce  "  with  the  Indian 
tribes."  This  policy  had  been  pursued  in  the  treaty  of  Hopewell,  and 
was  doubtless  chosen  wi  ely,  and  with  a  view  to  benefit  the  Indians. 
It  was  not  binding  upon  thom,  however,  till  they  voluntarily  consented  to  it. 

"  Art.  7.  The  United  States  solemnly  guaranty  to  the  Cherokee  nation  all 
their  lands  not  hereby  ceded." 

This  is  iho  most  important  article  in  the  treaty.  The  Cherokees  had 
yielded  some  of  their  natuial  rights.  Tiicy  had  agreed  not  to  treat  with 
any  foreign  power.  They  had  committed  the  regulation  of  their  trade 
to  the  United  States.  They  had  admitted  the  United  States  to  partici- 
pate in  the  navigation  of  the  Tennessee  ;  and  had  granted  a  free  pas- 
sage through  a  certaiv.  part  of  their  country  to  the  citizens  of  the  United 
States.     They  had  ceded  a  portion  of  their  territory. 

On  the  other  hand,  the  United  States  engaged  to  protect  the  Chero- 
kees, to  promote  their  civilization,  as  will  hereafter  be  seen,  and  espe- 
cially, to  guaraniy  the  integrity  and  inviolability  of  their  territory.  In  a 
world  full  of  outrage,  fraud,  and  violence*  it  is  a  great  advantage  for  a 
weak  state  to  obtain  the  solemn  guaranty  of  a  powerful  neighbour,  that 
its  rights  and  sovereignty  shall  be  safe.  All  this  is  implied  by  a  guaran- 
4 


2« 

It.  The  United  States  solemnly  engaged  to  preserve  and  defend  the 
Cherokees  ajjainst  all  foreign  powers,  (a  colony  of  Spain  being  then  in 
the  neighboiirliood,)  against  the  slates  of  Georgia  and  North  Carolina, 
against  the  Umted  States,  in  their  federative  capacity,  and  against  all 
white*  who  should  threaten  to  commit  aggressions  upon  the  Chero- 

The  word  guaranty  can  mean  no  less,  unless  limited  by  the  subject 
or  context,  if  Bonaparte  guarantees  the  integrity  of  Switzerland,  he 
engages  to  defend  and  preserve  Switzerland  from  aggression  and  inva- 
sion, whether  tho  danger  arises  from  Austria,  Prussia,  Holland,  or  even 
France  itself.  It  ia  the  chosen  and  approniiate  word  to  express  the 
utmost  security,  which  can  be  pledged  to  one  party  by  the  power  and 
good  faith  of  another.  .     «.       .        .  i-  j 

Upon  the  guaranty  of  the  United  States  the  Cherokees  have  relied, 
with  unshaken  constancy,  since  the  year  1791.  Within  a  few  months 
their  confidence  has  been  shaken  ;  and  they  are  now  in  a  state  of  groat 
solicitude  and  anxiety.  It  remains  to  be  seen  whether  a  treaty  will 
bind  the  United  States  to  a  weak  and  dependent  ally,  or  whether  force 
is  to  be  the  only  arbiter  in  the  case. 


No.  VII. 

TrtatT  ofllokton  continued— Further  remarks  en  the  guaranty— StaUment  of 
parallel  casei— WlioUier  Uie  world  can  be  made  to  receive  the  modera  inter- 
pretation—The Cherokeee  would  never  have  made  a  peace  without  thii  goa- 
rantT— Wo  urged  tho  Cherokeee  to  a  peace,  and  called  them  brothers— Ab- 
•tract  of  remaining  articles— Delivery  and  puniehroent  of  oruiunal^-Profferod 
aid  in  civilixation. 

In  the  article  of  guaranty,  which  was  tho  subject  of  discussion  in  my 
last  number,  the  country  of  the  Cherokee  nation  is  called  "  their  land* ; 
on  expression  utterly  at  variance  with  the  notion  that  tho  lands  belong- 
ed to  the  whites.     Indeed,  the  recent  interpretation  of  our  compacts 
witli  the  Indians,  does  great  violence  to  tho  ordinary  rules  of  language. 
Tho  seventh  article  is  short,  and  will  bear  repeating.— It  reads  thus  : 
"TiiK  United  Statk?  SOLEMNLY  GUARANTY  totheChero- 
KiB  Nation  ALL  THEIR   LANDS  sot  hebeby  ceded.;'     This 
seems  to  be,  upon  the  face  of  it,  a  plain  sentence.     A  man  of  moderate 
information  would  at  least  suppose  himself  to  understand  it.     He  would 
not  suspect  that  there  was  a  secret,  recondite  meaning,  altogether  in- 
compatible with  the  apparent  one.     But  it  seerns  that  there  waa  such  a 
meaning.     How  it  was  discovered,  or  by  whom,  the  public  are  not  in- 
formed.    The  present  Secretary  of  War,  however,  has  lately  adopted 
it,  and  urged  it  upon  the  Cherokees  as  decisive  of  the  whole  question 
at  issue.     The  true  meaning  of  the  article,  then,  as  explained  by  a  pub- 
He  functionary  thirty  eight  years  after  it  was  made,  would  have  been 
accurately  expressed  as  follows :  "  The  United  States  toUmnly  declare, 
thai  the  Cherokee  Indiane  have  no  right  nor  tUle  to  avy  lands  within  the 


/ 


I  defend  the 
eing  then  in 
th  Carolina, 
d  against  all 
the  Chero- 

r  the  iuV)ject 
itzerland,  he 
on  and  inva- 
and,  or  even 
expreiB  the 
B  power  and 

>  have  relied, 
I  few  montba 
state  of  groat 
Bi  treaty  will 
whether  force 


— StatenMmt  of 
3  modern  inter- 
ithout  this  gua- 
I  brothers — Ab- 
a»l§ — Profierod 


icuBsion  in  my 
'their  lands;'' 
I  lauds  belong- 
our  compacts 
!3  of  language. 
It  reads  thus : 

O  THE  ClIEKO- 

;edeu."  This 
m  of  moderate 
it.     He  would 

altogether  in- 
firc  teat  such  a 
»lic  are  not  in- 

lately  adopted 
whole  question 
lined  by  a  pub- 
luld  have  been 
ilemnltf  declare, 
lands  within  the 


27 

territory  of  the  United  States,  as  fixed  hy  the  treat!/  0/  na.*?;  but  the 
UniUd  Stittes  permit  the  Ckcrokeea  to  remain  on  the  lands  of  North 
Carolina,  South  Carolina,  and  Georgia,  {south  ami  tcrat  of  the  above 
described  houndarjf,^  until  the  said  states  shall  take  possession  of  the 

same."  ... 

This  is  the  jjuaranty  of  the  Cherokee  country  !  It  m  certuinly  tlio 
interpretation  of  the  Secretary  of  War.  How  woul<<  other  tronlics  bear 
a  similar  explanation?  The  newspapers  tell  uh,  that  Hussiii,  Great 
Britain,  and  France,  have  engaged  to  guaranty  \\w  territory  of  Grcec6 
within  certain  limits.  Does  this  mean  that  the  Orooks  are  to  bo  per- 
mitted to  live,  for  the  present,  on  lands  which  belong  to  the  Turks  ;  but 
that  the  Turks,  whenever  they  please,  nmy  lake  poi»st'f'i*ion  of  their  own 
lands,  and  massacre  the  Greeks  ? 

The  Federal  Constitution  says,  (Art.  IV.  sec.  4,)  "The  United 
State*  shall  guaranty  to  every  state  m  this  Union,  a  Republican  form 
of  government ;"  the  true  meaning  of  which  may  horoaltor  appear  to 
be  as  follows :  "  The  United  Htatos  shall  permit  ouch  stntt*  to  Imva  a 
Republican  form  of  government  for  the  present ;  and  until  a  monar- 
chical form  of  gooemmenl  shall  bo  imposed  u|>on  the  people  thereof." 

The  true  meaning  of  an  instrument  is  that  which  was  in  the  minds 
of  the  parties,  at  the  time  of  signing.  Can  the  Secretory  of  War  prove 
*hat  Central  Washington  understood  the  treaty  of  I  lolston,  according 
to  the  explanation  now  given  ?  Can  he  prove  that  the  Chorokoo  chiefc 
and  warriors  understood  it  in  the  same  manner  ?  Surely  he  would  not 
have  it  signed  and  ratified  in  one  sense,  and  carried  into  olVoct  in  a  to- 
tally different  and  opposite  sense.  He  must  thoroforo  suppose,  that 
the  Cherokecs  intended  to  admit  that  they  had  no  right  to  •  their  own 
lands,'  and  that  they  stood  ready  to  remove  wltonovor  roquostod.  But 
he  must  allow,  that,  if  this  were  the  meaning  of  the  parties,  it  was  very 
strangely  expressed  ;  and  however  sincerely  he  nmy  entertain  the  newly 
discovered  opinion  as  to  the  meaning,  ho  may  still  find  it  extremely 
difTicult  to  convince  the  world  that  ho  is  right. 

Will  the  Secretary  of  War  guaranty  his  country  against  any  loss  of 
character,  as  a  consequence  of  adopting  his  intorprolation  ?  Whom 
will  he  get  for  sponsors  and  compurgators  ?  Can  ho  engage  that  im- 
partial and  disinterested  men  will  bo  satisfied  ?  And  if  they  will  not, 
or  if  there  is  danger  that  they  will  not,  should  ho  not  distrust  his  own 
conclusions  ?  And  may  he  not  have  arrived  at  them  without  ■uflicient 
ekamination  ? 

Not  to  dwell  longer  on  the  words  of  the  article,  !•  it  credible  that  the 
Cherokees  would  have  signed  a  treaty,  in  the  year  1791,  if  they  had 
been  plainly  told  that  the  United  States  did  not  acknowledge  them  na  a 
separate  people ;  that  they  had  no  righu,  nor  any  lands  ;  that  they 
lived  upon  their  ancient  hunting  grounds  by  thd  permission  of  the 
whites ;  and  that,  whenever  the  whites  required  it,  they  must  remove 
beyond  the  Mississippi  ?  At  that  very  moment  the  Cherokees  felt 
strong.  They  and  the  neighbouring  tribes  could  collect  a  formidable 
force.  They  had  an  illimitable  forest  in  which  to  ronge,  with  many 
parts  of  which  they  were  perfectly  acquainted.  They  could  have  driven 
in  the  white  settlers,  on  a  lino  of  more  than  600  miles  in  extent.  Many 
a  Braddock'8  field,  many  a  St.  Clair'a  defeat,  many  «  battle  of  Tippa- 


H 


!' 


It 


'I 


f: 


28 

canoe,  would  have  been  witnessed,  before  they  could  have  been  expelled 
from  their  swamps  and  their  mountains,  their  open  woods  and  their  im- 
pervious cane-brakes,  and  fairly  dislodged  from  the  wide  regions  on  this 
side  of  the  Mississippi. 

The  people  of  the  United  States  wanted  a  peace.  We  invited  the 
Cherokees  to  lay  down  their  arms.  We  spoke  kindly  to  them ;  called 
them  our  brothers,  at  the  begiiining  of  every  sentence ;  treated  them  as 
equals  ;  spoke  largely  of  our  future  kindness  and  friendship  ;  and  shall 
we  now — I  speak  to  the  people  of  the  United  States  nt  large — shull  we 
now  hesitate  to  acknowledge  the  full  force  of  the  obligations  by  which 
we  bound  ourselves  ?  Having,  in  the  days  of  our  weakness,  and  at  our 
own  instance,  obtained  a  peace  for  our  own  benefit,  shall  we  now, 
merely  because  no  human  power  can  oppose  an  array  of  bayonets,  set 
aside  the  fundamental  article,  witnout  which  no  treaty  could  ever  have 
been  made  ? 

But  I  must  proceed  with  other  parts  of  the  compact. 

Art.  8.  If  any  person,  not  an  Indian,  shall  settle  on  any  of  the  Cherokee»' 
luids,  he  shall  forfeit  the  protection  of  the  United  States,  and  the  Cherokees  may 

punish  him.  ,      .         .,     ,     j      e 

Art.  9.  No  citizen  of  the  United  States  shall  attempt  to  hunt  on  the  lands  of 
the  Cherokees  ;  nor  shall  any  such  citizen  go  into  the  Cherokee  country  without 
a  passport  from  the  governor  of  a  State,  or  Territory,  or  such  other  person  as  the 
President  of  the  United  States  may  authorize  to  grant  the  same. 

Art.  10.  and  11.  Reciprocal  engagements,  in  regard  to  the  delivery  and  punish- 
ment of  criminals.  .„     „  •  r    »•        1.  11 
Art.  12.  No  retaliation  or  reprisal,  in  caso  of  injury,  till  after  satistaction  shall 

have  been  demanded  and  refused.  . 

Art.  13.  The  Cherokees  to  give  notice  of  any  hostile  designs. 

Art.  14.  "That  the  Cherokee  Nation  may  bo  led  to  a  greater  degree  of  civili- 
sation, and  to  become  herdsmen  and  cultivotors,  instead  of  remaining  in  a  state 
of  hunters,  the  United  States  will,  from  time  to  time,  furnish,  gratuitously,  the 
■aid  nation  with  useful  implements  of  husbandry  ;  and  further  to  assist  the  said 
nation  in  so  desirable  a  pursuit,  and  at  the  siinc  time  to  establish  a  certain  modo 
of  communication,  the  United  Stales  will  send  such  and  so  many  persons  to  re- 
side in  said  nation,  as  tlicy  may  judge  proper,  not  exceeding  four  in  number,  who 
•hall  qualify  themselves  to  act  i.s  interpreters.  These  persons  shall  have  lands 
assigned  by  the  Cherokees  for  cultivation  for  themselves  and  their  successors  in 
office;  but  they  shall  be  precluded  exercising  any  kind  of  traffic."  ...  , 

Art.  15.  All  animosities  to  cease,  and  the  treaty  to  bo  executed  m  good  faith. 

Art.  16.  The  treaty  to  take  effect  as  soon  as  ratified,  by  the  President  of  tha 
United  States,  with  the  advice  and  consent  of  the  Senate. 

• 

The  Treaty  was  signed,  in  behalf  of  the  United  States,  by  William 
Blount,  governor  of  the  territory  south  of  the  Ohio,  and  by  forty-one 
Cherokee  chiefs  and  warriors  in  behalf  of  the  Cherokee  nation ;  and 
was  afterwards  duly  ratified  by  the  President  and  Senate. 

A  few  remarks  seem  to  be  demanded  on  several  of  these  articles. 
In  the  ninth,  the  country  of  the  Cherokees  is  again  called  their  "  land*,'" 
as  it  had  been  twice  before  ;  and  the  citizens  of  the  United  States  are 
strictly  prohibited  from  attempting  to  hunt  on  said  lands ;  nor  could  any 
of  our  people  even  enter  the  country  without  a  passport. 

The  tenth  article,  which  is  baiely  mentioned  in  the  preceding  abstract, 
provides,  that  "  if  any  Cherokee  Indian,  or  Indians,  or  person  residing 
among  them,  or  who  shall  take  refuge  in  their  nation,  shall  steal  a  horse 


en  expelled 
nd  their  im- 
ions  on  this 

invited  the 
lem;  called 
ted  them  as 

;  and  shall 
e — eliuU  we 
ns  by  which 
,  and  at  our 
11  we  now, 
layonets,  set 
d  ever  have 


le  Cherokees' 
herokeca  may 

1  the  landi  of 
untry  without 
'  person  ai  the 

ry  and  punish- 

tisfaction  shall 


egrco  of  civili- 
ing  in  a  state 
atuitously,  the 
assist  the  said 
1  certain  mods 
persons  to  re- 
n  number,  who 
lall  have  lands 
ir  successors  in 

n  good  faith, 
resident  of  tha 


i,  by  William 

I  by  forty-one 

nation ;  and 

liese  articles, 
leir  "  landi,^* 
ed  States  are 
nor  could  any 

ding  abstract^ 
3rson  residing 
i  steal  a  horse 


from,  or  commit  a  robbery,  or  murder,  or  other  capital  crime  on  any 
citizeficpr  inhabitants  of  the  United  Slates,  the  Cherokee  nation  shall 
ba  bound'io  ^/iwr  Aim  or  them  up,  to  be  punished  according  to  the 
laws  of  the  Uiiiled  States." 

Thus  it  appears,  that  if  a  party  of  Cherokees  should  commit  murder 
in  the  white  settlements,  upon  citizens  of  the  United  States,  the  murder- 
ers could  not  be  pursued  a  foot  within  the  Cherokee  boundary.  Nay 
more,  if  one  of  our  own  people  shou.*  commit  murder,  or  any  other 
capiul  crime,  and  should  take  refuge  in  the  Chrrokee  nation,  he  could 
not  be  pursued,  however  flagrant  the  case  might  bo,  and  however  well 
known  the  criminal.  The  Cherokees  must  arrest  him  in  their  own  way, 
and  by  their  own  authority ;  and  they  were  bound  by  tliis  treaty  to  do, 
what  by  the  laws  of  nations  they  would  not  have  been  bound  to  do,  that 
is,  to  deliver  up  criminals  for  punishment.  Neither  the  United  States, 
nor  any  particular  State,  had  any  jurisdiction  over  the  Cherokee  coun- 
try. But  the  next  article,  which  my  argument  makes  it  necessary  to 
quote  at  large,  is,  if  possible,  still  more  decisive  of  the  matter. 

"Art.  11.  If  any  citizen  or  inhabitant  of  the  United  States,  or  of  either  of  the 
territorial  districtt  of  the  United  States,  shall  go  into  any  town,  settlement,  or 
territory  belonging  to  the  Cherokees,  and  shall  there  commit  any  crime  upon,  or 
trespass  against  the  person  or  property  of  any  peaceable  and  friendly  Indian  or 
Indians,  which,  ifrommitled  tcilhin  thejurudiction  of  any  Slate,  or  within  the  ju- 
risdietionaf  either  of  the  said  districts,  agaimt  a  citizen  or  any  white  inhabitant 
thereof,  w  ould  be  punishable  by  the  laws  of  such  State  or  district,  such  offender  or 
offenders  shall  be  subject  to  the  same  punishment,  and  shall  bo  proceeded  aguinst 
in  the  same  manner  as  if  the  offence  had  boon  committed  within  the  jurisdiction  of 
Ike  Stale  or  district  to  which  he  or  they  may  belong,  against  a  citizen  or  white  in- 
habitant thereof." 

If  there  is  any  meaning  in  language,  it  is  here  irresistibly  implied,  that 
the  Cherokee  country,  or  "  territory"  is  not  "  witliin  the  jurisdiction  of 
any  State,  or  within  the  jurisdiction  of  either  of  the  territorial  Districts 
of  the  United  States."  Within  what  juripdiction  is  it,  then  ?  Doubtless 
within  Cherokee  jurisdiction  ;  for  this  territory  is  described  as  "  belong- 
ing to  the  Cherokees,''— one  of  the  most  toiciblc  idiomatic  expressions  of 
our  language  to  designate  absolute  property.  What  then  becomes  of 
the  assumption  of  jurisdiction  over  the  Cherokees  by  tlie  State  of  Geor- 
gia ?  .'his  question  will  be  easily  decided  by  the  man  who  can  tell 
which  is  the  strongest,  a  treaty  of  the  United  States,  or  an  act  of  tlie 
Legislature  of  a  State.  The  treaty  says  that  the  Cherokee  territory  is 
inviolable  ;  and  that  even  white  renegadoes  cannot  be  pursued  thither. 
A  recent  law  of  Georgia  declares  the  greater  part  of  the  Cherokee 
country  to  be  under  the  jurisdiction  of  that  State  ;  and  that  the  laws  of 
Georgia  shall  take  full  effect  upon  the  Cherojtecs  within  less  than  a  year 
from  the  present  time.  The  Constitution  of  the  United  States  (Art. 
VI.)  has  these  words  :  "  All  treaties  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land ;  and  the  judges  in 
every  State  shall  be  bound  thereby,  any  thing  in  the  laws  or  Constitu- 
tion of  any  State  to  the  contrary  notwithstanding."  The  question  of  ju- 
risdiction is,  therefore,  easily  settled. 

But  the  full  acknowledgment  of  the  national  rights  of  the  Cherokees, 
and  of  the  sacredness  of  their  territory,  is  not  all  that  the  treaty  con- 
tains.    The  fourteenth  article  was  framed  expressly  for  the  purpose  of 


9» 

preserving  nnd  perpefuailng  the  national  exiitcnce  of  the  Cherok«es. 
Tliat  they  njighl  "  be  led  to  a  greater  degree  of  civilization''  appeani  to 
have  been  a  fa  'ourite  design  of  thfl  Ameiican  government.  With  a  view 
to  this  object,  nnd  that  they  might  "  become  herdimen  tmd  cultieatora," 
the  United  States  proffered  some  important  advantages ;  and  it  is  by  tho 
aid  of  these  very  advantages,  and  by  the  co-operation  of  faithful  teachers 
and  missionaries,  that  the  ('herokees  have  been  led  to  "  a  greater  de- 
gree of  civilization"  than  any  q|^er  tribe  of  Indiana.  So  undeniable  is 
this  fact,  that  Georgia  has  complained  of  it ;  and  the  government  has 
been  blamed  for  doing  those  things,  which  the  United  States  were  bound 
to  do  by  the  most  solemn  treaty  stipulations. 

In  a  word,  the  treaty  of  Holston  is  a  plain  document,  having  a  direct 
object.  It  is  consistent  with  itself.  It  does  not  contain  the  most  distant 
implication,  that  any  portion  of  the  human  race,  except  the  Cherokcea 
themselves,  had  even  the  shadow  of  a  claim  upon  the  Cherokee  territory. 
It  guarantees  that  territory  to  its  possessors  as  their  own  absolute  pro- 
perty ;  accepts  grants  from  them ;  and  engages  that  the  United  States 
ahali  befriend  them,  in  their  future  efforts  for  improvement.  That  tho 
Cherokees  have  never  forfeited  the  benefit  of  these  stipulations  will  ap- 
pear in  subsequent  numbers. 


> 


No.   VIII. 

Third  trtaty,  1793— Fourth  treaty,  oriecond  treaty  of  Philadelphia,  1794— Gua- 
ranty  of  another  Indian  treaty  —Fifth  treaty,  or  first  treaty  of  Tellico,  1798— Th« 
guaranty  repeated,  and  declared  to  be/orevtr — The  construction  of  former  trea- 
ties confirmed — No  shadow  of  evidence  on  the  other  side. 

On  the  nth  of  February,  1792,  an  additional  article  was  signed  at 
Philadelphia,  by  Henry  Knox,  Secretary  of  War,  for  the  United  States, 
and  seven  chiefs  and  warriors  in  behalf  of  the  Cherokees.  As  this  arti- 
cle was  the  result  of  a  distinct  negotiation,  held  seven  months  after  tho 
execution  of  the  Treaty  of  Holston,  it  may  with  propriety  be  called  the 
TuiRD  TREATY  between  the  United  States  and  the  Cherokees.  It  pro- 
vided that  the  annuity,  given  by  the  fourth  article  of  the  next  previous 
treaty,  should  bo  raised  from  g  1,000  to  g  1,500  ;  and  it  declared  that 
this  annual  sum  was  given  «*  in  consideration  of  the  relinquishment  of 
lands,"  which  had  been  made  in  that  treaty.  Of  course,  the  United 
States  admitted,  that  the  Cherokees  had  possessed  lands,  on  the  outside 
of  the  limits  established  by  the  treaty,  which  landa  they  had  relinquished 
to  the  United  States.  This  additional  article  was  a  confirmation  of  the 
Treaty  of  Holston,  after  ample  time  had  elapsed  for  consideration  : 

FOURTH  TREATY  V/ITH  THE  CHEROKEES. 

This  document  was  executed  at  Philadelphia,  on  the  26th  of  June, 
1794,  by  Henry  Knox  for  the  United  States,  and  thirteen  chiefs-for  the 
Cherokees. 

After  apreamble,  which  states  that  the  treaty  of  Holston  "  had  not  been  fully 
carried  into  execution  by  reason  of  some  misunderstanding,"  and  that  the  partiea 
were  "  desirous  of  re-establishinK  peace  and  friendship," 


j4»~i^..»aw». 


I7herok«ef. 
nppcars  to 
Vith  a  view 
UtitMitora," 
it  is  by  the 
ul  teachers 
;i-eatGr  de- 
(Icniable  is 
rnment  has 
rere  bound 

ng  a  direct 
lost  distant 
Cherokcea 
e  territory, 
solute  pro- 
lited  States 
That  tho 
ms  will  ap- 


1794— Out- 
),1798— Th« 
'former  trea- 


3  signed  at 
ited  States, 
LS  this  arti- 
la  aAer  tho 
i  called  the 
!s.  It  pro- 
(t  previous 
clared  that 
lishment  of 
the  United 
the  outside 
clinquished 
tion  of  the 


Eitjon ; 


fi  of  June, 
iefs'for  the 


at  been  futly 
tthe  partiea 


31 

Abt.  lit  deolu-et, "  thai  the  laid  treaty  of  Holtton  ia,  to  all  intenU  and  purpo- 
aei,  in  AiU  force,  and  binding  upon  the  laid  parties,  ai  well  in  respect  to  Ihe  boun- 
dariet  therein  mentioned,  as  tn  alt  other  reipecit  uhalerer" 

Aar.  2d  utipulates,  that  the  boundarits  shall  be  ascertained  and  marked,  when* 
ever  the  Cberokoes  shall  have  ninety  days'  notice. 

Aet.  3.  "  The  United  State.,  to  evince  their  justice  by  amply  compensating  tho 
aaid  Cherokee  Nation  of  Indians  for  relinquishments  of  land,"  made  '  by  tho  treaty 
of  Hopewell  and  the  treaty  of  Holston,'  agree  to  give  to  the  Cherokees,  in  lieu  of 
former  annual  payments,  |'>,000  a  year  in  goods. 

Aar.  4.  The  Cherokees  azreo  that  J50  shall  bo  deducted  from  their  annuity  for 
every  horse  stolen  by  any  of  ihoir  people  from  the  neighbouring  whites. 

Aar.  5.  These  articles  to  bo  permanent  additions  to  the  treaty  of  Holston,  aa 
soon  as  ratified.  They  were  soon  aAer  ratified  by  President  Washington  and  the 
Senate. 

It  has  appeared,  in  the  course  of  this  discussion,  that  tho  treaty  with 
the  Creeks,  in  1790,  was  the  basis  of  the  treaty  of  Holston  in  1791. 
This  was  confirmed  in  1792,  and  again,  expressly  and  solemnly,  in  1794. 
Thus  we  have  four  di-stinct  documents,  which  xeceived  the  approbation 
of  General  Washington,  and  his  cabinet,  all  agreeing  in  the  same  princi-  - 
pies,  and  all  ratified  by  the  senate  of  the  United  States.  Several  other 
treaties,  in  which  the  enme  principles  were  involved,  were  fonnod  with 
other  tribes  of  Indians,  during  the  same  administration.  In  one  of  these, 
the  United  States  engage,  that  they  •  will  never  claim  the  lands  reserved 
to  the  Indians  ;'  but  that  the  Indians  '  shall  have  the  free  use  and  enjoy- 
ment thereof,  until  they  choose  to  sell  the  same  to  the  people  of  the 
United  States.' 

FIFTH  TREATY,  OR  TREATY  OF  TELLICO. 

This  treaty  was  signed  "  near  Tellico,  on  Cherokee  Ground,"  Oct.  2, 
1790,  by  Thomas  Butler  and  George  Walton,  commissioners  of  the 
United  States,  and  thirty-nine  Cherokee  chiefs  and  warriors,  \n  the  pre- 
sence of  Silas  Dinsmoor,  Agent  of  the  United  States  among  tho  Che- 
rokees, and  thirteen  other  witnesses,  among  whom  was  the  late  Mr. 
Charles  Hicks,  who  acted  as  interpreter  on  tho  occasion. 

The  treaty  begins  with  a  long  preamble,  stoiiing  tho  reasons  why  it  was  neces- 
sary to  make  another  treaty  ;  and  among  tbe  reasons  ore  these  two  clauses ;  vi>. 
»'  for  the  purpose  of  doing  jrutiee  to  the  Cherokee  Aa/ton  of  Indian* ;"  and  "  in  or- 
der to  promote  the  interett  and  laftty  of  the  State?." 
Art.  1.  Peace  renewed  and  declared  perpetual. 

Aar.  2.  The  treaties  subsisting  between  the  parties  in  full  force ;  "  together  with 
the  eomtmetion  and  usage  under  the  respective  article* ;  and  to  to  continue" 

Art.  3.  Limits  to  remain  the  same,  "where  not  alterea  by  the  present  treaty." 
Art.  4.  The  Cherokee  Nation  "  do  heftsby  relinquish  and  cede  to  the  United 
States  all  the  lands  within  the  following  points  and  lines  :"  [Here  follows  a  boun- 
dary, by  which  a  considerable  district  of  land,  now  in  East  Tennessee,  was  ceded 
to  the  United  States.] 

Art.  5.  The  line  described  in  the  treaty  to  be  marked  immediately,  "  which 
said  lii\5  shall  form  a  part«f  the  boundary  betuiecn  the  United  State*  and  the  Chero- 
fcec  JVo/ion.'' 

Art.  6.  In  consideration  of  tho  preceding  cession,  the  United  States  agree  to 
pay  15,000  on  signing,  and  ^1,000  annually,  in  addition  to  previous  stipulations  of 
this  kind;  '^and  tnill  continue  Ihe  GUARANTY  or  thb  rbhainoer  or  thbir 
cotJNTRV  FOREVER,  as  made  and  contained  in  former  treaties." 

Art.  7.  A  road  granted  by  "  the  Cherokeo  nation,"  across  a  small  corner  of 
their  country,  to  the  citizens  of  the  United  States ;  and  in  consideration  of  this 
grant,  the  Cherokees  are  to  be  permitted  "to  hunt  and  take  game  upon  the  lands 


a 


f 


VI 


4 


1 1 


rtlinquUhtd  and  ceded  by  thU  treaty,"  unUl  MtUemenU  ihall  make  lueh  huntiuf 
improper.  ^^^  ^^^,^^  ^^  ^^  ^^^^  ^^^^^  payment  of  the  annaa!  ftip«ndii,  and  th« 
United  gutei  to  furnish  proviiioM  for  a  reawnable  number  of  Chorokeee,  who 
ihall  aaaemblo  on  lhe«e  occawoM.  .  r     l    .u.  fT»n.^ 

A«T.  9.  Hor*e.  .tolen  from  Cherokeei  by  white.,  to  be  paid  for  by  '»>•  U"^* 
SUtee;  and  horse,  .tolen  fVom  white,  by  Cherokee.,  to  be  paid  for  by  a  deduction 

*^Alil.*o"The^'Agent  of  the  United  SUte.  re.iding  among  the  Cherokee,  to 
have  a  eufflcient  piece  of  ground  allotted  "/or  hU  temporary  use.  ^^ 

L..tly  :  thi.  Ueaty  to  "  be  carried  into  effect  on  both  .ide.  "f?'*  °«f  "'f/''},'*/ 

Tho  treaty  wa.  ratified  .oon  after,  by  Prewdent  Adam.,  and  the  Senate  of  tho 
United  State..  . 

A  few  remarks  on  this  treaty  may  not  be  improper. 

The  words  cede,  nation,  and  guaranty,  are  used  m  the  same  sensM 
here,  as  in  the  treaty  of  Holston,  seven  years  beforb.  Durmg  the  in- 
terral,  the  government  of  the  United  States  had  been  frequently  em- 
ployed  in  making  treaties  with  various  tnbes  of  Indians ;  and  it  is  safe 
to  say,  that  in  no  period  of  our  national  history,  was  the  meaning  of 
public  documents  more  thoroughly  weighed,  or  the  tendency  and  ulU- 
mate  effect  of  public  measures  more  seriously  considered  ;  and  the 
world  may  be  challenged  to  produce  an  example  of  tho  administration 
of  a  government  over  an  extensive  territory,  and  over  a  people  m  new, 
various,  and  complicated  relations,  in  which  fewer  misUkes,  either  theo- 
retical or  practical,  were  made,  than  during  the  administration  of 
General  Washington.  .  . 

The  parties  were  so  careful  of  the  inviolability  and  integrity  of  the 
Cherokee  territory,  that  the  use  of  a  short  road,  in  the  northern  extre- 
mity  of  that  territory,  (now  in  the  State  of  Kentucky,)  at  a  great  dis- 
tance from  the  actual  residence  of  the  Cherokees  generally,  was  made 
the  irround  of  a  solemn  treaty  stipulation,  and  an  equivalent  was  given 
for  it.  Nay  more,  the  Agent  of  the  United  States,  residing  among  the 
Cherokees  to  distribute  the  annual  payments,  to  encourage  the  naUves 
in  agriculture  and  manufactures,  and  to  execute  the  treaties  m  other 
respects,  could  not  claim  even  the  temporary  use  of  land  for  a  garden, 
or  a  cow  pasture,  till  this  small  convenience  was  allowed  him  by  treaty. 

The  United  States  not  only  acknowledge  former  treoties,  and  declare 
them  to  be  in  full  force  ;  but  "  the  construction  ai^  usage  under  their 
respective  articles"  are  acknowledged,  ratified,  and  declared  to  be  the 
rule  of  future  usage  and  construction.  This  is  a  very  remarkable  pro- 
vision  :  and  was  doubtless  adopted  to  quiet  the  Cherokees  in  regard  to 
encroachments  feared  from  the  United  States,  ^he  construction  and 
usage,  under  the  previous  treatie3,/an  be  proved  at  this  day,  by  living 
witnesses,  and  by  public  archives,  to  have  tended  invariably  to  this 
one  point— that  the  Cherokees  were  to  retain  tho  unimpaired  sovereignty 
of  their  country  ;  and  that  to  enable  them  to  do  this  permanently,  and 
in  the  most  effectual  manner,  they  were  to  be  taught  aU  the  common 
arts  of  civilized  life.  To  this  course  they  wercurged,  '"  «'«  ™°«^|; 
fectionato  manner,  by  letters  written  with  General  Washington  sown 
hand.  This  was  pressed  upon  them  at  every  council,  and  »"^'>!j"f  "y '" 
private,  by  the  Agent  of  the  United  States,  in  pur^uancp  of  written  and 
verbal  instructions  from  the  head  of  the  War  Department.  No  histori- 
cal facts  can  be  proved  with  more  absolute  certainty  than  these  ;  and 
there  is  not,  it  is  believed,  even  the  pretence  of  any  evidence  to  tfte  con-^ 
trary. 


J 


eh  hunting 

da,  and  Um 
uktM,  who 

the  UniUd 
L  deduction 

Iterokeei  to 

foodfailh." 
mate  of  th« 


me  sensM 
ing  the  in- 
lentiy  em- 
,  it  is  safe 
leaning  of 
y  and  ulti- 
;  and  the 
inistration 
le  in  new, 
ither  theo- 
tration  of 

rity  of  the 
icrn  extre- 
great  dis- 
was  made 
was  given 
among  the 
lie  natives 
3  in  other 
a  garden, 
by  treaty, 
nd  declare 
inder  their 
to  be  the 
kable  pro- 
TCgird  to 
uction  and 
,  by  living 
iy  to  this 
overeignty 
lently,  and 
e  common 
e  most  af- 
Tton's  own 
ibitually  in 
irrittsn  and 
No  histori- 
hese  ;  and 
;o  the  con- 


) 


J 


It  appears,  moreover,  in  the  preamble  to  this  treaty  of  Tcllico,  that 
the  "  miaunileralandinga"  had  arisen,  liecausc  white  settlers  had  trans- 
gressed the  C'lierokco  boundary,  "conlrnry  to  the  intention  of  previous 
treaties  ;"  and  tlmt  these  intruders  had  been  removed  by  tiic  authority  of 
the  United  States. 

Again  :  this  treaty  was  nejrotintcd  by  Gcoriio  Walton,  a  citizen  of 
Georgia,  in  whom  that  state  reposed  great  confidence,  and  by  Thomas 
Butler,  commanding  the  troops  of  the  United  Slates,  in  the  state  of 
Tennessee  ;  and  it  was  executed,  (to  use  its  own  language)  "  on  Chero- 
kee ground." 

Thus,  the  country  of  the  Chcrokees  is  called,  as  T  have  already  shown, 
"  their  lands,"  their  "  territory,"  "  their  nation,"  and  their  "  ground." 
These  epithets  are  used,  not  by  careless  letter  writers,  nor  in  loose  do- 
bate  ;  but  in  tlio  most  solemn  instiumenis,  by  which  nations  bind  tiiem- 
selves  to  each  other.  And  what  is  there  on  the  other  side  ?  Is  it  said, 
or  implied,  th;it  the  Chcrokees  had  a  qualified  title  ?  a  lease  for  a  term 
of  years  ?  a  riijht  to  hunt  till  Georijia  should  want  the  land  for  growing 
corn  or  cotton  ?  the  privilenreof  administerin;,'  their  own  laws,  till  Hcor- 
gia  should  exercise  her  rightful  jurisdiction,  ns  a  sovereign  and  inlepen- 
dent  State  ?  Is  tliero  any  thing  that  looks  this  way  ?  .Not  a  word  ;  not 
a  syllable;  not  the  most  distant  hint.  While  it  is  asserted  in  various 
forms,  and  implied  more  than  a  hundred  times  over,  that  the  Cherokees 
were  a  nation,  capable  of  tre  iting  with  other  nations  ;  that  they  had  a 
country,  which  was  acknowledjjed  to  be  indisputably  their  own  ;  that 
they  had  a  government  to  punish  criminals  and  to  deliver  up  renegadoes  ; 
and  that  they  wore  to  become  a  civilized  people,  permanently  attached 
to  the  soil  ;  there  is  hot,  in  all  these  instruments,  a  single  intimation,  or 
ground  of  [ilausible  argument  to  the  contrary. 

Lastly  this  treaty  not  only  adopts  the  word  "guaranty"  from  the 
treaty  of  Holston,  but  interprets  it,  (as  every  civilian  in  Europe  and 
America  would  have  done,)  to  be  applicable  to  "  the  remainder  of  their 
country  FOREVER  ;"  that  is,  (lor  the  meaning  can  be  no  less,)  the 
Chcrokees  were  to  retain  the  clear  title  and  unincumbered  possession 
of  the  remainder  of  their  country,  which  they  previously  had  of  the 
whole ;  and  such  title  and  possession  were  guaranteed  to  them  forever, 
by  the  power  and  good  faith  of  the  United  States. 


No.  IX. 

Guaranty  to  the  Del&warei,  in  177&— In^atitude  of  not  giving  a  fair  conttmetion 
to  theie  treaties— Sixth  compact  with  the  Cherokee*,  1803--Caution  in  the 
;>rMeryation  of  their  righU— Use  of  the  word  Father— Second  treaty  of  Telli- 
CO,  or  seventh  compact,  1804— Third  treaty  of  Tellico,  or  eighth  compact,  1805. 

The  idea  of  a  guaranty,  and  of  a  country,  as  a  territory  belonging  to 
Indians,  was  not  new,  even  at  the  period  of  the  treaty  of  Holston. 
The  first  treaty,  which  I  have  been  able  to  find,  made  with  Indiana 
h 


!t 


!? 


91 

bf  the  Unite«1  Sui«i !"  'Heir  eonWeratea  chiraeter,  wn  execntp.l  at 
Fort  Fitl,  on  the  I7tl.  >  .  Septeiuhcr,  l"l>.  It  containi  the  JollowinR 
very  rflonarkable  article : 

-  Aat.  6.  WhMt.t  the  •ncmie*  of  th«  Unit.d  8t«t«<  h**.  •ndemvo.irfd,  by  •»•- 
rr  arlificB  in  ihmr  pow«r,  to  po.«.M  iHb  Indian,  in  IJ.  ..cr»l  wUh  Iht  o|.n..on  that  it 
?|J|.  d..iin  of  th,  8t.U.  .forcaid  to  extirpate  the  Indi.n..  .nd  l.ke  Po-«=-'°'' 
of  their  co'untry  ;-to  obviate  ...ch  fal^  .ugK.Mion  the  United  «'•;«•  J"  •"«•«• 
to  guaranty  to  the  aforewid  nation  of  Delaware,  and  their  heir.,  <i//  thnr  t"r,lon- 
alrtsht,  in  tht  f.ille.t  and  mo.t  ample  manner,  an  it  hath  been  hounded  by  for- 
mT  t«atie..  a.  long  a.  they,  the  .aid  Delaware  nation,  .hall  ab.de  by.  an  J  hold 
3.  the  ch^in  of  ffiend.hip  now  ri.lered  into.  And  it  ..  lurthor  agreed  on,  be- 
tt^entho  contracting  p.rtie.  (.hould  it  for  the  future  be  «•»"»•»,-"«";'*•  "''i», 
mutual  intere.t  of  both  partie.)  to  invite  any  other  tribe.,  who  have  l-""  /"••"» 
to  the  interMt  of  the  United  State.,  to  iuiii  the  present  confederation,  and  to  form 
•  State,  whereof  titt  Drh^arf  mH.on  .hall  bf  (he  head  and  have  a  rfpretmlationxn. 
Cofvrreii;  proTided  nothinn  contained  in  thi.  article  to  be  oon..dered  a.  conclu- 
«vSl  it  meeu  with  the  approbation  of  ConKre«..'  [1  hat  .  did  meet  with 
the  approbation  of  Congr.M  la  manif.*t;  bocau.o  it  i.  now  part  ot  a  naUonal 
treaty.] 

The  bare  sii«ire«tion  tint  the  United  States  designed  to  take  potttt- 
,ion  of  the  Indian  country  was  treated  ns  a  Kla.i.lcr  n.id  a.  ca  utnny. 
The  tirritorial  right,  of  the  Indians  were  to  be  respected,  and  the  In- 
dian tribes  generally  were  encouraged  with  the  pioposal  that  they  might 
be  re|.re«ented  in  Congress.  The  natural  iuiphcat.on  of  this  ast  pro- 
posal  must  have  been,  that  the  Indians  not  only  had  territorial  rights, 
but  miL'ht  expect  to  retain  ibcm  permanently,  in  the  snn.e  manner  as  tne 
Sute  of  Virginia,  or  Connecticut,  and  the  other  confederated  rcpubUca, 
expected  to  retain /A«V  tcmt.^riai  rights.  ,  ir„;..M 

tet  it  be  remembered,  that  this  treaty  was  m»de  when  the  Uni  ed 
States  were  strugfjli.p  for  independence  against  »'>«  "'h"^'«  ^""^^Vj; 
British  empire,  and  when  every  accession  of  strength  to  the  American 
cause,  and  every  =»ubtracUon  from  the  power  of  the  enemy,  was  a  mat- 
"r  of\rt,«t  imporunce.     Nor  should  it  be  forgotten,  that  other  treotie. 
formed  with  thi  Indians,  after  the  peace  of  Great  Britain  were  extremely 
desirable  to  the  United  States;  that  the  exhausted  treasury  of  the  na- 
tion  could  ill  afford  the  expense  of  Indian  wars;  that  the  Indian    had 
the  undisputed  possession  of  boundless  forests,  on  all  our  ffO-iOe"; 
that  many  of  them  had  endured  public  and  private  injuries,  which  we«i 
unavenged  and  uncompensated;  that  the  Indian  tribes  were  strong, 
compared  with  their  subsequent  decline  and  their  present  total  want  of 
power  ;  and  that  the  United  States  were  weak,  compared  with  their  pre- 
sent gigantic  strength.  -;„„i- 
Though  the  treaties  were  formed  in  such  circumstances,  not  a  rngle 
article  b^re  hardly,  or  oppressively,  on  the  United  States,  or  on  the  new 
settlers.     The  Indians  claimed  nothing  unjust  or  unreasonable.      1  he 
early  negotiations  wear  the  aspect  of  mutual  benefit,  and  appear  to  have 
been  conclude,  with  a  desire  to  secure  permanent  peace  to  the  parties, 
founded  on  the  acknowledgment  of  their  mutual  rights. 

Are  the  people  of  ll«  United  States  unwilling  to  give  a  fi»'^  "ndid, 
«nd  natural  construction  to  a  treaty  thus  made  ?  I  might  say-  Are  they 
unwilline  to  give  it  the  only  construction  of  which  it  is  capable^  Are 
they  unWillini  to  admit  a  meaning  which  stands  out  P'om»nently  upon 
nlie  very  fcce  of  the  transaction,  and  which  no  ingenuity  can  ^»»°^. 
p«v«rt,  or  evade  ?     Will  they  refuse  to  be  bound  by  the  plainest  and 


3i 


Bcntnl   at 

rrd,  by  •»•- 
iiiion  that  it 
n  poueMion 

■  «lo  engaga 
I'lr  Ifrnlort- 
ided  by  for- 
)y,  and  hold 
reed  on,  ba- 
luciva  to  the 
been  frienda 
and  to  form 

rimlalion  in 
id  aaconclu- 
id  meet  with 
f  a  national 

iA-«  pottts- 
A  calumny, 
and  the  In- 
,  (hey  might 
lis  last  pro- 
trial  riglits, 
inner  as  the 
d  rcpublica, 

the  United 
force  of  the 
e  American 
wns  a  mat- 
iher  treaties 
re  extremely 
f  of  the  na- 
Indians  had 
r  frontiers ; 
which  were 
rere  strong, 
)tal  want  of 
th  their  pre- 

not  a  single 

■  on  the  new 
nable.  The 
pear  to  have 
I  the  parties, 

fair,  candid, 
ly,  Are  they 
pable  ?  Are 
linently  upon 
can  distort, 
plainest  and 


most  solemn  enfrogemcnts,  deliberately  formed,  ratified,  acted  upon, 
crnfirincd,  r.ititicd  a-j^tin  and  ajjain  by  the  hiu:he:tt  authority  of  our  rs' 
public  !  Huw  can  it  for  a  inoincnt  be  apprehended,  that  the  co-ordinate 
branches  of  our  tiuverninctit — our  h\)/,\t,  lc(;i»lative,  executive,  anri  ju- 
dicial function uries,  will  luaiiifeiit  su  total  a  disre((ard  of  every  principle 
of  public  niorahly  ! 

ilXTH  COMPACT  WITH  THE  CHEROKEES. 

This  instrument  wii«  executed  on  the  '20tli  of  October,  10O3,  by  Re- 
turn J.  Moil's,  Agent  «)f  Ihn  llnitwl  States  arnonsr  the  ChoroLees,  and 
by  fourteen  (  hcrokee  chiefs,  bejjinninK  with  Black  Fox,  the  principal 
chief,  and  oiidin^  uith  tlin  ftinniis  Jnnics  Vniin.  Ft  wum  witnessed  by 
five  ofTiccrs  of  the  United  States'  Army,  and  three  otiier  pcrsioni,  one  of 
whom  was  Cliarlos  llicks,  then  actinj;  an  interpreter.  1  have  called  it 
a  compact,  not  a  treaty,  becaii.ie  it  was  not  sent  to  tlie  Senate  fot  ratifi- 
cation. Hut  tliou<rh  it  bo  nut  technically  a  treaty,  it  is  morally  binding 
upon  the  United  Htates  ;  for  it  has  been  carried  into  eflbct,  and  the 
United  States,  particularly  the  people  of  Tennessee  and  Georgia,  have 
derived  great  benefit  from  it.     I  have  an  accurate  copy  before  me. 

^Articles  of  aj;rcemnnt  hatwcnn  tha  United  States  and  the  Cherokee  nation, 
for  opening  a  road  Truin  the  state  of  Tcnnemee  to  the  tjlate  of  Georgia,  through 
tha  Cherokee  nation. 

'^  Tho  Cherokee  nation  having  taken  into  coniideration  the  request  of  thsir 
Father,  tho  President  of  the  United  Slates,  to  grant  tiiat  a  road  may  be  opened 
through  the  nation,  from  the  State  of  Tennessee  to  the  State  of  Georgia,  and  b«- 
ing  desirous  to  evince  to  their  Father,  the  President,  and  the  good  people  of  the 
United  States,  their  good  will  and  friendly  dispotition,  do  hereby  agree,  that  4 
road  may  be  opened  fVom  the  State  of  Tennessee  to  the  State  of  Georgia,  with 
the  reservations  and  provisions,  as  in  the  following  articles  are  expressed  ;  and 
further  to  evince  to  our  Father,  the  President,  that  we  are  not  influenced  by  pe* 
euniary  motives,  we  make  a  present  of  the  road  tu  the  United  Slatea." 

Akt.  1.  A  road  granted,  sixty  feet  in  width,  passing  through  ahout  150  miiss  of 
Cherokee  territory,  and  opening  a  communication  from  >^gusta,  Georgia,  to 
Knoxville  and  Nashville,  Tennessee.  [This  has  usually  been  ci>lled  the  Federal 
Road.  It  has  been  much  travelled  ;  and  great  quantities  of  merchandise,  and 
other  valuable  properly,  have  been  transported  over  it.]  It  was  to  be  mado  solely 
at  the  expense  of  tho  United  States.  The  article  also  provides,  that  when  the 
road  ia  opened,  tha  direction  of  it  shxll  not  bt  changed ;  and  that  uo  branch  or 
branches  (except  one  v.'hich  had  been  described)  "  snail  ever  be  permitted  to  be 
opened  without  the  eonitnt  of  the  Cherolcee  nation." 

Art.  2.  The  Cherokecs  reserve  to  themselves  the  income  of  the  ferries ;  and 
specify  where  the  ferries  shall  be  kept. 

Akt.  3.  Various  regulations  respecting  houses  of  entertainment,  whiok  the 
Cherokees  were  to  establish  ;  keeping  the  road  in  repair,  die.  &c. 

Art.  4.  No  neat  cattle  from  the  southern  States  shall  bo  driven  through  the 
Cherokee  nation ;  and  when  horses  are  taken  through,  the  number  of  them  shall 
be  inserted  in  the  passport  of  the  owner.  The  Cherokee*  not  to  be  answerable 
for  estrays  from  among  the  animals  of  the  whites. 

Art.  5.  Officers,  civil  and  miUtary,  mail  carriers,  and  some  other  elasacs,  M- 
empted  from  toll  and  ferriage. 

Art.  6.  Coramissionors  to  bo  appointed  on  each  side  to  survey  and  mark  the 
road. 

Art.  7.  One  copy  of  this  agreement  to  be  sent  to  the  Secretary  of  War,  an- 
other to  be  left  with  the  principal  Cherokee  Chief,  and  a  third  with  the  Agaat  of 
(ha  United  States  among  the  Cherokees. 


Tb«  road  w««  onencd  tlia  following  year,  and  hii  now  been  tnytWti 
for  a  quarter  of  a  cenlury  ;  an.l.  during  this  whole  tunc,  has  KTeiH\y 
facililated  intercourse  between  dillerent  parts  of  the  aoutlicrn  atatct. 

No  reader  of  the  f<)re«oin((  abstract  can  be  ho  dull  a»  not  to  perceive, 
that  the  nrivdeKO  was  framed  to  the  I'nitcd  Stales,  at  the  ^peciul  tn- 
•tanco  of  the  President ;  that  the  Chorokocs  were  extremely  cnutioua 
not  to  compromit  Iheir  territorial  rights  ;  that  ihoy  made  the  ^rant  from 
motive*  of  friendship,  ur.d  a  willinunoss  to  afford  the  desired  acconmio- 
dation.  They  gunrd,  in  a  suitublo  manner,  ntjauisl  vexations  and  lia- 
bilities, to  which  this  act  of  kindness  iniwht  be  thoucht  to  e:  pose  them  ; 
and  they  reserve  the  income  of  the  ftMries,  some  of  which  arc  over  con- 
siderable rivers,  and  Imvo  been  quite  profitable. 

The  word  •  F.iliier*  is  repeatedly  used  in  this  document,  to  uiclicata 
the  relation  which  the  President  oflh.-  Unitc.l  States  hnld  to  "'C  ^""o- 
kees,  as  their  protector  from  npyresnion,  and  as  bound  to  sec  that  tlie 
treaties  with  them  arc  carried  into  effect  "  with  nil  good  faith.  >Vo 
had  obtruded  the  word  upon  them.  Wo  had  put  it  into  their  mou  hs, 
and  it  was  made  the  staiidinjf  pledge,  not  merely  of  our  justice,  but  of 
our  kindness  and  Rcnerosilv  towards  them.  Shall  this  sacred  and  vene- 
rable name  be  prostituted  to  purposes  of  injustice  and  oppression  .  for 
most  asauredly,  it  will  bo  deemed  oppression,  .-nk  opi.rcssion,  «f  we  «l'«- 
own  our  enffagements,  forswear  our  most  solemn  covenants,  and  then 
take  possession  of  the  lands  of  our  poor  neighbours,  which  had  been  se- 
cured to  them  by  the  highest  guaranty  which  we  could  make,  rsor 
will  the  oppression  bo  less  odious  on  account  of  its  being  accompanied 
by  professions  of  great  benevolence,  and  the  promise  of  a  new  guaranty. 

SECOND   TREATY   OF   TELIJCO  OR  8FVF.NTH  NATIONAL  COM- 
PACT  WITH  THE  CHEROKEES. 

This  instrument  was  executed  ••  in  the  garrison  of  Tellico,  on  Chero- 
kee  Rround,"K3ctobor  24,  1804,  by  Daniel  Snutl.  and  Return  J-  Me'^»; 
for  the  United  Srttes,  and  ten  chiefs  and  warriors  for  the  Cherokees,  in 
the  presence  of  five  witnesses. 

The  preamble  says,  that  certain  propositions  were  made  by  the  Com- 
missioners; that  they  were  considered  by  t lie  Chiefs ;  and  »'«»  '  'h« 
parties  aforesaid  have  unanimously  agreed  and  stipulated,  as  is  definitely 
expressed  in  the  following  articles  :" 

Aar.  1.  "  For  the  con.ideration-  hereinafter  e,pre«ed.  the  Cl""^"  ""°"  «; 
Hnjulkand  cede  to  the  United  States,  a  tract  of  land,  boundrng,  f'^-  W'"' 
wara.maUtr"ct.  called  Wafford  .  Settlement,  conl<i:n.ngperh.p.  n°' ^°"''*« 
7oO  000  a!-e.   It  wa.  a  strip  on  the  frontier  between  the  Cherokee.  »"«)  Georg  a^ 

Am^  2  "  n  conaideratiSn  of  the  relinr^uhnuntand  «"«-;'>^^';;^';„^„^V  ^^ 
upon  aigning  the  pre.ent  treaty,"  ihall  pay  thoCherokee.  f'-'W^.  »  e''"^*  «^ 
money,  at  the  option  of  the  Cherokee.,  and  ^1,000  aonually,  m  addition  to  tha 
previsua  aonuitie*. 

the  treaty  was  ratified  by  President  Jefferson  and  the  Senate  The 
"  relinquishment  and  cession"  are  of  the  same  nature,  ""^  ="7;;^'* 
them  the  same  implications,  as  Iiave  been  described  in  preceding  com- 
Dientf. 


flA^t^    -    ---Vi'At^ifc  -^- 


37 


traYelTed 
1  grealiy 
tales. 
pcrceWei 
[leciul  in- 
cautious 
rant  from 
ccomnio- 
I  and  lia- 
no  them  ; 
over  con* 

0  indicata 
le  Chcro- 

1  that  the 
ih."  Wo 
ir  mouths. 
Ice,  but  of 

and  vene- 
ion  ?   For 

if  we  dis- 
,  and  then 
d  been  ae- 
ike.  Nor 
;ompanied 

guaranty. 

JAL  COM- 


on  Chero- 
I  J.  Meigs, 
Brokeos,  in 


THIRD  TREATY  OF  TELLICO.  OR  LIOHTH  COMJ'ACT  WITH  THE 

CHF.KOKF.Eg. 

Thia  treaty  was  cxeniled  October  2r»,  I  COS,  by  two  Commi^sionera 
of  the  United  State**,  and  thirly-tlireo  Chcrolkco  chiefi  and  warriors,  in 
the  presence  of  ten  witncs-'C?. 

AsT.  1.  "  Fnrmnr  tr»ali«i  roooitnincd  and  cotitinurd  in  lurrr. 

AsT.  3.  "  Tiio  Churokeei  quil  ilatin  and  eiHf  to  tlie  I'liitnd  Statei,  all  Hio  land 
whicli  thcjr  [tho  Chorokoei]  have  herelolbre  rlaimnd,  lyin;;  t.>  the  north  uf  Ihs 
foilowin;;  boundary  line ;"  [Tho  land*  hero  ceded  were  of  ((teat  value,  and  fell 
into  the  State  of  Tennewee,  extending  cant  and  went,  near  the  central  parti  of  that 
Bute.] 

Art.  3.  "  In  coniideration  of  thn  ahovo  irnion  and  rtltnqxtiihmtnt,  tho  United 
State*  agroo  to  pay  immediately,"  $14,000,  and  |J,(NJ0  a  year,  in  addition  to  pre* 
Tioue  annuitiPA. 

Art.  4.  1'hu  citizens  of  the  United  State*  to  havo  tho  free  and  nnmolcited  u*« 
of  two  roadi,  in  addition  to  those  prcviouily  oilalilinliod  ;  one  luading  from  Ten- 
neaien  to  Georgia,  and  the  other  from  Tenncwoo  tu  tho  aottlemont*  on  th«  Tom* 
big(>ee.  Theiio  road*  to  be  marked  out  by  men  appointed  on  each  (id*  tor  tha 
purpose. 

Art.  5.  Thi*  treaty  to  take  cfTccI,  "ns  icon  a*  it  i*  ratified  by  the  Prciident  of 
th«  United  State*,  by  and  with  Uie  advice  and  eonnent  of  tho  Senate  of  the  lame." 

Tho  treaty  wns  ratified  by  Prcsi(Icnt  Jcflcrson  and  tho  Senate.  It  will 
be  observed,  that  the  first  orlido  contains  an  express  recognition  of  pre- 
vious treaties,  and  pledges  tho  faith  of  tho  United  States  anew  fur  tho 
fulfilment  of  those  treaties. 

Several  documents  of  this  kind  remain  to  be  considered  ;  but  I  engoge 
myself  io  you,  Messrs.  Editors,  and  to  your  readers,  that  I  will  be  as 
brief  as  possible,  consistent  with  fidelity  to  tho  cauio.  This  is  a  serion 
matter  to  the  Indians  and  to  tho  people  of  the  United  States.  It  is  a 
matter  which  must  be  decided  by  the  great  body  of  the  people,  tlirough 
their  Representatives  in  Congress.  The  people  must  tlierefbre  have  the 
means  of  understanding  the  subject. 


^  tho  Com- 

tliat  "  the 

8  definitely 


:m  cation  re- 
Slc.  [This 
ot  more  than 
nd  Georgia.] 
Initcd  States, 
,  in  goods  or 
dilion  to  Ihs 


nate.  The 
1  carry  with 
;eding  com- 


No.  X. 

Foarth  treaty  of  Te'lico,  or  ninth  <?ompact,  1805 — Proceedings  of  the  State  of 
Tennessee — First  treaty  of  Washington, or  tenth  compact,  lf!06 — Settlement  of 
the  Chickasaw  boundary — Treaty  of  Chickasaw  Old  Fields,  or  eleventh  com- 
pact, 1P07 — Second  treaty  of  Washington,  or  twelfth  compact,  1816 — Proceed- 
ing! cf  (south  Carolina. 

I  would  content  myself  with  saying,  in  reference  to  the  remaining 
treaties,  that  they  are  perfectly  consistent  witii  the  preceding  ones,  were 
it  not,  that  this  sweeping  declaration  would  by  no  means  do  justice  to 
the  cause  of  tho  Indians.  Several  of  these  treaties  contain  new  and 
striking  illustrations  ufthe  doctrine  that  the  Chcrokees  were  understood 
to  possess  their  country  in  full  sovereignty. 

FOURTH  TREATY  OF  TF.LLICO,  OR  NINTH  NATIOiNAL  COMPACT 
WITH  THE  CHER0KEE8. 

Thia  treaty  was  executed  October  27,  1805,  at  the  tame  place,  as  the 


J 


38 

one  next  preceding,  and  only  two  days  afterwards.  It  was  si^med  by  the 
same  commissioners  an<l  fourteen  of  the  same  Cherokee  chiefs. 

The  occasion  of  it  is  sulFicicntiy  exphiined  in  tlic  first  article : 

Art  1  »  Whereas  it  has  l)ecn  rcproientcd  by  tho  one  party  to  the  other,  thtt 
the  .ectio'n  of  la.ul  on  which  tho  garnsou  of  Southwest  I'oint  stands,  and  which 
extends  to  Kingston,  is  likely  to  he  a  do.irablo  place  for  the  Assoml.ly  of  tire 
State  of  Tennessee  to  convene  at,  (a  committee  from  that  body,  now  in  session,  hav 
ine  viewed  the  situation,)  now,  tho  Cl.orokces,  being  pout„td  of  a  ijnnt  of  fonci- 
IMion,  and  soeinsf  that  this  tract  is  desired  for  public  purpoBCs,  and  not  f"r  'nd  - 
Vfdual  advantages,  ««r«nff  ,ht  fcrri.>  io  them.eln.,  qviUhtm  and  «rf«  to  • 
United  States  tho  said  nection  of  land,  undcrstandmg,  at  the  same  time,  that  the 
buildings  erected  by  the  public  are  to  belong  to  the  public,  a«  well  a.  t''"  """f^ 
t^^n  of  the  same  during  the  pleasure  of  the  Government.  We  also  rede  to  the 
United  States  tho  first  Island  in  the  Tennessee  above  the  mouth  of  the  Clinch. 

Art  °   The  Chcrokccs  grant  a  mail  road  to  tho  United  States,  from  Tellico  to 
the  Tombigbee,     to  be  laid  out  by  viewers  oppomtcd  on  both  sides. 

AiiT.3.  "In  consideration  of  tho  above  ersswn  and  rdmquxskment,  the  United 
States  agree  to  pay  to  tho  said  Cherokee  Indians,  ^1,C00." 

Art.  4.  The  treaty  to  be  obligatory  when  ratified. 

Within  a  year  or  two  past,  as  I  have  already  said,  the  politicians  of 
Georcia  have  contended,  that  the  national  povemmcnt  has  no  authority 
to  make  treaties  with  Indians  living,  as  they  describe  the  matter,  "  w'lhin 
the  limits  of  a  sovereign  and  independent  State."  1  he  fact  is,  that  the 
national  .rovernment  is  tlieonly  competent  authority,  under  the  federal 
constitution,  to  enter  into  anv  engagements  with  the  Indian  tribes,  which 
vet  retain  their  organization  as  separate  communities,  and  are  acknow- 
ledged to  possess  a  title  to  land  wiliiin  definite  limtts.  The  uniform 
practice  of  the  government  has  accorded  with  these  principles ;  and 
Georgia  herself  has,  until  very  lately,  been  urging  Congress  and  the 
Executive  to  hold  treaties  with  the  Cherokees.  t   .  .i.- 

How  did  the  State  of  Tennessee  understand  this  subject?     Let  the 
first  article  of  the  preceding  treaty  answer.    The  legislature  of  Tennes- 
see,  desirous  of  obtaining  a  site  for  the  erection  of  buddings  to  accom- 
modate their  state  government,  sent  a  committee  to  view  tlie  point,  at 
the  junction  of  two  beautiful  rivers,  the  Tennessee  and  the  Clinch.  Ihe 
boundary,  as  it  then  stood,  ran  very  near  tliis  point ;  and  the  State  so- 
licited  a  square  mile  for  the  public  object  above  described.    The  Chero- 
rokees,  out  of  a  spirit  of  conciliation,  and  for  jj  1,600  ,n  money,  ceded 
the  section  of  land  with  these  remarkable  reservations,  viz.  that  they 
were  to  retain  the  ferries  at  the  seat  of  government  oil  lennessce  ;  and 
that  the  grant  was  made  for  public  objects  only.     Of  course,  the  land 
would  revert  to  the  Cherokees,  if  the  seat  of  government  should  be  re- 
moved.     As  the  legislature  afterwards  fixed  the  seat  of  government  tar 
ther  west,  no  public  buildings  wore  erected  at  this  place.     Narrower 
boundaries  were  subsequently  established  between  the  United  States  and 
the  Cherokees  ;  but  the  ferries  were  iield  for  a  long  time,  if  they  are  not 
now  held,  by  assignees  of  the  Cherokees.     The  treaty  was  ratified  by 
President  Jefierson  and  the  Senate. 

This  whole  transaction  strongly  illustrates  several  important  positions, 
which  have  been  taken,  or  implied,  in  the  preceding  discussion  ;  such  as 
the  inviolability  of  tho  Cherokee  territory  ;  the  right  of  the  Cherokees 
to  make  or  withhold  cessions  of  land,  according  to  their  pleasure  ; 
their  right  to  impose  such  restrictions  upiin  their  grants  as  they  pleasea  ; 


39 


il  by  the 


ther,  that 
nd  which 
ly  of  the 
lion,  hav- 
!  of  eonei- 
,  for  indi- 
ede  to  tlie 
that  the 
o  occupa- 
edo  to  the 
:-Hnch." 
Tellico  to 

;he  United 


iticians  of 
authority 
,  "  within 
I,  that  the 
le  federal 
ics,  which 
!  acknow- 
e.  uniform 
pies;  and 
ss  and  the 

Let  the 
f  Teniies- 
to  accom- 
I  point,  at 
linch.  The 

State  so- 
'he  Chero- 
ney.  ceded 
:.  that  they 
essce  ;  and 
le,  the  land 
ould  be  re- 
rnment  far 

Narrower 

States  and 
hey  are  not 

ratified  by 

it  positions, 
on  ;  such  as 
!  Cherokees 
I-  pleasure  ; 
ley  pleased  ; 


and  the  treaty-making  power  of  the  United  States  being  the  only  me- 
dium hy  which  a  State  can  get  a  proper  title  to  Indian  territory. 

TREATY  OF  WASIIINOTO.V  OR  TENTH  COMPACT  WITH  THE 

CHFROKEES. 

This  treaty  was  negotiated  at  Washington,  January  7,  ICOC,  hy  Hen- 
ry Dearborn,  Secretary  of  War,  and  seventeen  Cherokee  chiefs  and 
warriors. 

The  object  appears  to  have  been  to  adjust  certain  chiiins  of  the  Che- 
rokees and  Cliickasaws  to  the  same  land:^,  lying  between  the  Tennessee 
river  and  Duck  river,  in  what  is  now  West  Tennessee.  'I'his  was 
done  by  obtaining  a  relinquishment  to  the  United  States  of  "  all  the 
right,  title,  interest  and  claim,  which  the  Cherokees,  or  their  nation, 
have,  or  ever  had,"  to  the  tract  described,  except  that  two  reservations 
of  small  portions  of  this  tract  are  mado  by  tho  Cherokees. 

The  United  States  give  10,000  dollars,  and  certain  privileges,  in 
consideration  of  the  above  relinquishment. 

The  United  States  also  agree  to  use  their  influence  to  have  a  certain 
boundary  establiriiied  between  the  Cherokees  and  Chickasaws,  on  the 
south  side  of  the  Tennessee  river  ;  "  but  it  is  understood  by  the  con- 
tracting parties,  that  the  United  States  do  not  engage  to  have  the  afore- 
said line  or  boundary  established,  but  only  to  endeavour  to  prevail  on 
the  Chickasaw  nation  to  consent  to  such  a  line,  as  the  boundary  between 
the  two  nations." 

Here  it  is  implied,  in  the  strongest  manner,  that  the  United  States 
had  no  right  to  encroach  upon  Indian  territory,  or  to  fix  boundaries 
between  neighbouring  tribes  ;  and  that  these  tribes  had,  as  separate  na- 
tions,  the  unquestioned  power  to  settle  their  own  boundaries. 

The  governnoept  of  the  United  States  was  willing,  however,  to  act 
the  part  of  a  mediator  in  the  adjustment  of  the  boundaries. — Katilied 
by  Mr.  Jefferson  and  the  Senate. 

TREATY  OF  CHICKASAW  OLD  FIELDS ;  OR  ELEVENTH  COMPACT 
WITH  THE  CHEROKEES. 

This  treaty  was  executed  by  Return  J.  Meigs  and  James  Robertson,  on 
the  one  part,  and  five  Cherokee  chiefs  on  the  other,  September  11,1 807. 

It  was  made  to  '  elucidate'  the  next  preceding  treaty,  or  to  ascertain 
the  real  intention  as  to  the  boundary.  The  Cherokees  were  to  receive 
^2,000  I'or  '  their  readiness  to  place  the  limits  of  the  land  ceded  out  of 
all  doubt ;'  and  it  was  stipulated  that  "  the  Cherokee  hunters,  as  hath 
been  the  custom  in  such  cases,  may  iiunt  on  such  ceded  tract,  until  by 
the  fulness  of  settlers,  it  shall  become  improper." 

This  is  the  second  instance,  in  which  a  privilege  to  hunt  on  ceded 
lands  is  granted  ;  that  is,  the  Cherokees  were  allowed  to  exercise  the 
same  rights  of  ownership,  over  land  which  they  had  quit  claimed  and 
sold,  and  for  which  they  had  been  paid,  as,  (if  we  are  to  believe  the 
present  Secretary  of  War,)  they  could  ever  exercise  over  any  of  their 
lands,  which  had  not  been  ceded.  I  am  willing  to  presume,  however, 
that  the  Secretary  of  War,  after  mature  deliberation,  will  abandon  a 
position  80  utterly  untenable. 

This  treaty  was  ratified  by  Mi-.  Jefferson  in  the  usual  manner. 


HFCOND  TREATY    OF  WASHINGTON:    OR  TWELTH    COMPACT 
BECOiNU    ini.  wiTHTIIK   CHEIIOKEES. 

The  sole  object  of  this  treaty  was  to  obtain  for  South  Carolina  a  small 
portion  "f  tr.ountiiinou3  country,  lying  nt  the  northwest  point  of  that 
state.  It  was  executed  bv  (ioorge  IJraham,  couirnissioner  of  the  United 
States,  and  six  Cherokee  Cliicfs,  March  2->,  ICIG. 

Art  1  "  Whnrcas  tlio  e.xcrutivo  of  South  Carolina  has  made  an  application  to 
thri'rowdcnt  oflhe  United  Slut««  to  cxlin.iui^h  the  claim  of  the  Cherokee  nation 

to  that  Jan  of  their  landB,  which  lio  withm  the  »'°""''"\«^  "^ '^^ '"J  V„ nh  ^  * 
lately  citablished  and  agreed  upon,  between  that  stale  and  ho  Htuto  of  North  Ca- 
rohna  rand  aH  th«  CheFoke..  nation  U  disposed  to  comply  with  the  wishes  of  their 
brothe  .  of-Soulh  Carolina,  they  have  airrcod,  and  do  hereby  agree  to  «rfe  to  the 
Stato°f  S°"l>'  Carohnu,  and  forever  quit  claim  to  the  tract  ot  country  contained 
within  the  followiMS  bounds:-'  [Mere  the  bounds  are  described,  comprismg  a 
Tract  now  in  th.  N .  W.  come,  of  South  Carolmu.  The  tract  wus  of  small  extent 
and  verv  little  value,  na  it  is  uuicm  tlie  mountains.]  ^  „  ,  ^  ,.  ,  ,,  „ 
Art  V  The  United  Stale.  ..;;r,.  ,  that  the  Slate  of  South  Carolina  shal  pay 
thrChe;okces  r-OOO  for  this  irrant,  in  ninety  days  :  "  Provided,  ^  Y\'l'\l-^'Z 
Ze  utiX^oii, kail  have, anclwntdllu  same  .n  Cuu«c./ ;  •'"'*,l"-°;"^'^,'*,"'*°' '^^M^* 
Executive  of  the  Slato  of  South  Carolina  shall  approve  oi  the  stipulations  contain- 
ed  in  this  article." 

This  treaty  was  ratified  bv  the  parlies  ;  viz.  President  Madison  and 
the  Senate,  and  tlio  Cherokee  nation  in  council  assembled  ;  and  it  was 
doubtless  approved  by  the  povcrnor  of  South  Carolina. 

Here  is  another  perfect  illustration  of  the  manner  in  which  the  several 
states  obtained  a  title  to  lamli^,  which  had  remained  the  property  ol  in- 
dians  :  though  the  lands  appeared,  according  to  the  maps,  to  belong  to 
those  states.     White  men,  uot  Indians,  made  the  maps.      1  he  northwest 
corner  of  South  Carolina,  as  that  state  appeared  on  the  map,  still  be- 
longed to  the  Cherokee  Ino.ans.     The  state  wished  to  obtain  possession 
of  this  little  fraction  of  mountainous  territory.     In  a  manner  perfectly 
fair  and  honourable,  she  applied  to  the  general  government,  reques  ing 
that  the  territory  might  be  purchased  of  the  rightful  owners.     She  does 
not  say,  that  the  land  belongs  to  her  ;  but  simply  that  North  Carolina 
has  agreed  with  South  Carolina,  as  to  the  boundary  between  them,  when 
the  land  shall  have  been  obtained  of  the  Cherokees.     She  does  not  pre- 
tend that  the  Cherokees  are  bound,  or  that  their  rights  are  m  any  de- 
cree affected,  by  agreements  between  third  parties.     This  is  a  correct 
view  of  the  subject  ;  and  quite  as  applicable  to  Georgia,  as  to  South 
Carolina,  or  anv  other  state. 


No.  XI. 

Third  treaty  of  Washington,  or  thirteenth  compact,  1816— Claim  of  the  Chero- 
kees previously  recogniEcd-The  right  to  navigate  riversin  the  Cherokee  r.,t,on 
obtained  by  treaty-Treaty  of  the  Chickasaw  Council  House,  or  fourteenth 
compact,  1816-Preface,  or  title  of  the  treaty-Rca.oni  for  the  treaty-Ab- 
stract of  it — Remarks  upon  it. 

There  are  four  remaining  treaties  to  be  examined.     Two  of  them 


*«-^*fc^. 


DMPACT 

na  a  small 
[It  of  that 
ihe  United 


iplication  to 
okee  nation 
did  utato,  ai 
if  North  Ca- 
ches of  their 
B  cede  to  the 
y  contained 
oinprising  a 
small  vxient 

na  sliall  pay 
t  tiio  Chero- 
lUo,  that  the 
lOns  contain- 


[adison  and 
and  it  was 

1  the  several 
perty  of  In- 
;o  belong  to 
e  northwest 
lap,  still  bc- 
n  possession 
ler  perfectly 
I,  requesting 
.  She  does 
rtli  Carolina 

them,  when 
Ices  not  pre- 
e  in  any  de- 
I  is  a  correct 

as  to  South 


of  the  Chero- 
Cherokee  nation 
,  or  fourteenth 
he  treaty— Ab- 


Two  of  them 


41 

were  nccotialed  by  the  distinRuislicd  poncrnl,  who  is  now  the  Chief 
Muilistrate  of  the  United  States,  and  oiio  by  ti.o  dwtin«uwlied  Secretary 
of  War,  who  is  now  Vice  Frcsi.loiit  of  tho  United  Staten.  On  thcso 
accounts,  as  wvW  as  from  their  inherent  importance,  they  are  worliiy  of 
particular  attention. 

THIRD  TREATY  OF  WASHINOTON;  OR  TIIIRTF.F.NTII  NATIONAL 
iuiivu  cOWrACT  WITH  THE  CIIKROKEKS. 

This  treaty  was  executed  on  the  same  day  with  llio  one  next  proccd- 
injr  •  viz.  March  22,  1810,  and  sii?ned  by  (Jportfo  (Jrnhiim  lor  the  Unit- 
ed States,  and  six  Cherokee  chiefs,  for  tho  Cherokee  nation.  Bomg  on 
a  different  subject  entirely,  it  was  embodied  in  u  soparato  document. 

Art  1  The  boundary  between  thoao  partu  oftlio  Crook  and  Cliurokoe  nationa, 
which  were  weat  of  the  Cooaa  river,  i»  uKroud  upon.  Tho  United  Statoi,  having 
obtained,  by  treaty,  the  Creek  land.  »voi*t  of  tho  (,<mi.a  and  eontitfunuH  to  Up  Cho- 
rokeoa,  it  became  necewary  to  ascertain  and  oitaMinh  tho  truo  boundary  between 
theao  nations.  In  tlic  body  of  tho  article  it  in  .aid,  tliat  in  tho  Irialy  oj  January, 
UtOe,  (already  doHcribed  a>  tho lenlh  com,mel,)  "the  Unilml  H»ttte«,  liav.i  refOKn.t- 
fd  a  claim  on  the  part  of  tho  Cherokee  nation  to  the  land*  aoiith  ol  tlio  Uitf  bend, 

Art  2  "  It  ia  expressly  agreed,  on  tho  part  of  tho  CIn'rokoo  nation,  that  tho 
United  States,  shall  have  the  right  to  lay  oH;  open,  and  have  llio  !>.-«  uso  ot  such 
road  or  roads,"  aa  ahail  bo  needed  to  open  a  communication  through  the  Chero- 
kee country  north  of  tho  boundary  now  fixed.  The  Dnilod  State.  iVeely  to  navi- 
eato  all  tho  river*  and  water.  "Within  the  Choroknn  nation.  ....         , 

Art  3.  "  In  order  to  preclude  any  dispute  huroaftor,  r.dativo  to  tho  boundary 
lino  now  established,  it  is  hereby  agreed,  that  Ihc  Chcmkre  mUon  thall  appoint 
Itooeommmionento  accompany  the  commio.ionora,  already  oppoinlod  on  Uiepart 
of  tho  United  States,  to  run  the  boundary,"  Ac. 

Art.  4.  In  order  to  avoid  delay,  when  tho  I'ro.idont  o.  tho  United  State,  .hall 
wish,  at  any  time  hereafter,  to  open  a  now  road,  under  tho  grant  of  the  second 
article  of  thi.  Ueaty,«tho  principal  chief  of  the  Chorokoe  nation  .hall  appmn  one 
commissioner  to  accompany  the  commiMionor.  appointed  by  tho  1  resident    to 

''!\R?.5.''The''united  State,  agree  to  pay  |25,500  to  "  individual,  of  thod'ero- 
koe  nation,"  on  an  indemnity  for  Iobh.'s  sustained  by  thorn,  IVoiu  tho  march  of  tho 
United  State,  troops  "  through  that  nation."' 
Tho  treaty  was  duly  raUfiod  by  President  Madi.on  and  tho  Senate. 

A  very  few  remarks  on  this  document  will  bo  sufliciont. 

The  first  article  says,  that  tho  United  States,  in  a  treaty  made  ten 
years  before,  recognized  a  claim  of  tho  Cherokee  nation  to  land  south 
of  the  Big  Bend  of  the  Tennessee.  What  claim  ?  Doubtless  euch 
claim  as  the  Cherokces  made.  But  they  never  madu  any  partial,  lim- 
ited, or  qualified  claim  to  their  huids.  They  never  sot  up  a  title  as 
tenants  for  the  lives  of  the  existing  generation,  or  tenanU  for  years,  or 
tenants  at  will.  They  simply,  and  always,  claimed  tho  land  aathetr 
oum ;  and  this  claim  the  United  Stales  must  havo  recognized,  il  they 
recognized  any  claim  at  all.  ,  . 

The  fact  was,  that  the  article  hero  referred  to,  as  containing  a  recog- 
nition of  the  Cherokee  claim,  was  the  one,  by  which  the  United  States 
epcaged  to  prevail  on  the  Chickasaws  to  agree  upon  u  certain  boundary 
between  them  and  tho  Chcrokecs.  Thus,  tho  friendly  attempt  to  hx  u 
boundary  between  these  two  Indian  nations,  was  justly  construed,  m  a 
C 


if 


V 


m 


42 

treaty  ten  3?cars  afterwards,  to  be  a  recognition  of  the  claims  of  ihote 
nations,  to  the  lands  on  each  .side  of  the  boundart/. 

]\y  articlp  sncond  it  is  iiltcoiI,  on  the  part  ot'  tlie  Cherokee  nation, 
that  the  Iriilnd  States  .fhall  hare  the  ri'^ht  to  lay  ol^' roads,  in  a  certain 
part  ol'the  nalimi,  and  in  a  prescribed  mainicr.  Of  course,  it  mnst  be 
inlerred,  that  liio  Inited  States  had  not  tliis  rifilit  before  ;  that  the  as- 
sent of  the  Clierokec  nation  was  necessary  to  invest  the  United  States 
with  the  rifilit;  and  that  it  must,  even  when  expressly  granted,  be  ex- 
ercised in  the  manner,  whidi  the  treaty  prescribed.  This  article  speaks, 
also,  of  rivers  and  waters,  "within  the  Cherokee  nation;"  and  stipulates, 
that  the  citizens  of  the  Inited  States  may  freely  navijiato  these  waters. 
Un  lookinir  at  the  map  of  the  Cherokee  countr\  us  it  then  existed,  the 
reader  will  find,  that  besid(!  the  lliwassee,  the  (  >.s!anawlee.  the  Coosa, 
and  many  smaller  streams,  that  noble  river,  the  Tonnessee,  took  a  sweep 
of  more  than  l.jO  miles  through  the  Cherokee  nation.  There  was  {rood 
reason  to  wish  for  the  privilejre  of  navijratii.fT  tbese  waters;  but  how 
absi  d  to  resort  to  the  trcaty-makiiitr  power  for  the  purpose  of  obtain- 
ing It,  if  the  country  really  belonged  to  Georj^ia  and  the  neighbouring 
sttitcs 

By  articles  ."^d  and  4th,  it  appears,  that  the  Cherokee  nation  had  a 
government,  which  the  United  States  acknowledged,  as  being  always  in 
existence,  and  always  competent  to  transact  any  national  business. 

TREATY  OF  THE  CFUCKAS    W  COUNni-  HOUSE;  OR  FOUR- 
TEENTH COMPACT  WITH  THE  CHEROKEES. 

This  document  was  signed  on  the  14 th  of  September,  I81G.  The 
preface  is  important,  and  I  must  cite  it  at  length. 

"  To  perpetuato  peaco  and  friendship  between  the  United  States  and  the  Cher- 
okee tril)o  or  nation  of  Indians,  and  to  remove  ail  future  causes  of  dissension 
which  mny  arinn  from  indefinite  territorial  boundaries,  tlie  President  of  the  United 
States  of  America,  by  major-general  Andrew  Jackson,  general  David  Meriwether, 
and  Jesse  Franliiin,  esquires,  commissioners  plenipotentiary  on  the  one  part,  and 
the  Cherokee  delegates  on  tlio  other,  covenant  and  agree  to  the  following  arlicle« 
and  conditions,  which,  when  approved  by  the  Cherokee  nation,  and  constitution- 
ally  ratified  by  the  govornraent  of  the  United  States,  shall  be  binding  on  all  par- 
ties." 

It  is  always  to  be  presumed,  that  the  President  of  the  United  States 
will  givo  a  fair  and  natural  construction  to  all  public  engagements  made 
by  the  proper  authority.  There  are  special  reasons,  why  the  present 
incumbent  of  that  high  office  should  respect  the  document  I  am  now 
conside.ing,  and  a  similar  one,  which  was  executed  the  following  year. 

The  reasons  for  the  treaty,  assigned  in  the  preface  above  quoted,  are 
good  and  sufficient  reasons  ;  and  such  as  commend  iheiuselves  to  every 
man's  heart  and  conscience.  "  To  perpetuate  peace  and  friendship  be- 
tween neighbouring  communities  is  a  benevolent  work,  the  importance 
of  which  much  depends  on  the  durability  of  the  relation,  to  which  such 
phi-aseology  is  applied  ;  and  to  remove  all  future  causes  of  dissension, 
which  may  arise  from  "  indefinite  territorial  boundaries,''  is  .a  work 
scarcely  less  benevolent  than  the  other.  This  is  the  very  language, 
which  would  be  used  on  a  similar  subject,  by  Russia  and  Prussia,  or 
any  two  contiguous  nations  in  Europe. 


ma  of  those 

kec  nation, 
in  a  certain 
,  it  must  be 
hnt  the  as- 
fiitctl  States 
ted,  be  ex- 
icle  speaks, 
1  stipulates, 
esc  waters, 
existed,  the 
tlie  Coosa, 
>ok  a  sweep 
c  \va3  <:ood 
I ;  but  how 
3  of  obtain- 
ci<rhbouring 

ation  liad  a 
g  always  in 
isiiiess. 

I  FOUR- 


I81G.     The 

ind  the  Cher- 
of  dissension 
of  the  United 
1  Meriwether, 
one  part,  and 
owing  arliclcB 
constilution- 
ng  on  all  par- 

nitcd  States 
ments  made 

the  presci:t 
it  I  am  now 
lowing  year. 

quoted,  are 
ives  to  every 
jndship"  be- 
'  importance 
(  wliich  such 
I  dissension, 
'  is  .a  work 
■y  language, 

Prussia,  or 


: 


43 

Further,  it  appo  irs  by  the  very  prefuco.  as  well  as  by  the  subsequent 
proceedings,  that  this  treaty,  thoii>;h  made  in  the  imniediiitc  neighbour- 
hood of  the  Cherokee  coutitry,  and  s^'itiuml  by  fiftieii  chiefs,  was  not 
considered  as  binding,  till  it  should  bo  "  approved  by  the  Cherokee  na- 
tion." When  this  should  have  boon  done,  and  the  treaty  should  have 
been  ratified  by  the  government  of  the  United  States,  it  would  be  "bind- 
ing on  all  parliex.'^ 

It  is  humiliating  to  be  obliixcd  to  prove,  thnt  parlies  to  a  treaty  are 
bound  by  it.  To  |)relend  the  contrary  is  an  utter  i)ervcrsion  of  reason 
and  common  sense.  There  are  persons,  however,  to  whom  express 
covenants  seem  stronger  than  unavoidable  implications.  Such  persons 
are  requested  to  oljseive,  that  major  general  Andrew  Jackson  and  his 
colleagues  did  expressly,  in  so  many  words,  "  corinnnl  and  agree,'  that 
the  treaty  should  "  be  binding  on  all  parties.''  Why  is  it  not  bmdmg 
then  ?  Where  is  the  promised  perpetual  peace,  if  the  weaker  party  is 
to  be  outlawed  ?  Where  is  the  benefit  of  dejinite  territorial  boundaries, 
if  these  boundaries  are  not  respected  ? 

The  following  is  a  brief  abstract  of  the  treaty  : 

Art.  1.  *  P'acc  and  friendship  established.' 

Art.  2.  The  western  boundary  described.  It  curtailed  the  Cherokee  country 
on  the  southwest,  and  gave  to  the  United  Status  a  tract  ofland,  now  in  the  State 

of  Alabama.  .      .     ,      ,       .  .•       j        j    • 

Art.  3.  The  Cherokccs  relinquish  and  cede  the  land  just  mentioned,  and,  m 
consideration  thereof,  the  United  Statesagreo  to  pay  $5,000  in  CO  days,  and  $6,000 
a  year,  for  ten  successive  years. 

Art.  4.  The  line  to  bo  plainly  marked.  o ..     „  •.  j  o.  . 

Art.  5.  The  Cherokee  nation  to  meet  the  commissioners  of  the  United  fetatei 
at  Turkey-town,  on  the  28th  of  thi  same  month,  "  there  and  then  to  express  thnr 
approbation,  or  not,  of  the  articles  of  this  treaty  ;"  but,  if  th«  nation  did  not  assem- 
ble, it  would  bo  considered  "  at  a  tacit  ratification" 

On  this  treaty  I  would  observe,  that  there  are  several  things  in  it 
worthy  of  special  commendation  ;  viz :  the  solicitude  to  avoid  future 
difficulties,  the  uncommon  care  manifest  in  article  fourth,  (which  a  re- 
gard to  brevity  prevented  my  citing  at  large,)  to  have  the  line  of  terri- 
tory made  jilain  ;  and  the  repeated  and  explicit  acknowledgment,  that 
the  Cherokees  were  to  express  their  approbation  of  the  treaty,  before  it 
would  be  binding.  Of  course,  they  were  to  be  dealt  with  as  intelligent 
and  moral  beings,  having  rights  of  their  own,  and  capable  of  judging  m 
regard  to  the  preservation  of  those  rights. 

It  must  be  presumed,  that  the  commissioners  of  the  United  States 
were  at  Turkey-town,  on  the  28ili  of  September,  the  day  appointed  for 
the  ratification  ;  but  whether  the  Cherokees  were  dilatory  in  assem- 
bling, or  whether  strong  arguments  were  necessary  to  obtain  their  con- 
sentT  does  not  appear.  Six  days  afterwards  the  transaction  was  closed, 
as  is  proved  by  the  following  certificate  : 

"  Ratified  at  Turkey-town  by  the  whole  Cherokee  nation  in  council  assembled. 
In  testimony  whereof,  the  subscribing  commissioners  of  the  United  States,  and  the 
undersigned  chiefs  and  warriors  of  the  Cherokee  nation,  have  hereto  set  their 
hands  and  seals,  this  fourth  day  of  October,  in  the  year  of  our  Lord  ono  thousand 
eight  hundred  and  sixteen."  .   ..„.,„_„ 

^  Signed,  ANDREW  JACKSON, 

D.  MERIWETHER,  and 
nine  Cherokee  chiefs,  in  the  presence  of  the  venerable  Col.  Meigs,  two  interpre- 
ters, and  Major  Gadsden  of  the  United  States  army,  who  subscribed  as  witness**. 

The  treaty  was  ratified  by  Tresident  Madison  and  the  Senate. 


4i 

I  close  this  number  by  requesting  all  our  public  nrjcn  to  meditate  upon 
the  following  words  of  a  very  snirficious  king  : — Remove  not  the  old 
landmark;  a'i.'-'i  i^o',  inio  mc  fields  of  the  fathtrleaa ;  that  is,  of 
the  weak  and  i  ?>'  .  '  •  >88 ;  for  their  Redeemer  is  mighty ;  He  shall 
plead  their  cauat         ..tce. 


\\ 


•A 


No.  XII. 

Treaty  of  the  Cherokno  Agnncy,  or  fifteenth  compact,  ini7— Title  of  the  treaty 
—Long  and  curioui  preamhio— Abstract  of  the  treaty— Ucmarks  upon  it— Sin- 
gular arrangement  of  Providence — Consideration  of  Mr.  Joffeison's  letter — The 
United  State*  to  be  bound  by  fear  alone— The  Chorokees  relied  on  these  pro- 
mises. 

The  next  treaty  is  unique  in  its  character  ;  but  all  its  provisions  are 
in  accordance  with  the  principles  of  preceding  compacts.  It  forcibly 
illustrates  the  change,  in  the  condition  and  prospects  of  the  Cherokees, 
which  had  then  commenced,  and  has  been  constantly  increasing. 

TREATY  OF  THE  CHEROKEE  AGENCY,  OR  FIFTEENTH  COMPACT 
WITH  THE  CHEROKEES. 

TITLE. 

"  Articles  of  a  treaty  concluded  at  the  Cherokee  Agency  within  the  Cherokee 
nation  between  major  general  Andrew  Jackson,  Joseph  McMinn,  governor  of  the 
State  of  Tennessee,  and  general  David  Meriwether,  commissioners  plenipotentiary 
of  the  United  States  of  America  of  the  one  part,  and  the  chiefs,  head  mei^and 
warriors  of  the  Cherokee  nation,  east  of  the  Mississippi  river,  and  the  chiefs,  head 
men,  and  warriors  of  the  Cherokees  on  the  Arkansas  river,  and  their  deputies, 
John  D.  Chisholm  n  James  Rodgers,  duly  authorized  by  the  chiefs  of  the  Che- 
rokees on  the  Arkansas  river,  in  open  council,  by  written  power  of  attorney,  duly 
signed  and  executed  in  presence  of  Joseph  Sevier  and  William  Ware." 

Here  surely  are  parties,  commissioners,  and  agents  enough  to  make 
a  treaty  ;  but  the  preamble,  occupying  an  octavo  page  and  a  half,  is 
still  more  remarkable.  It  declares,  that  in  the  year  1808,  a  deputation 
from  the  Upper  and  Lower  Cherokee  towns  went  to  Wasliington  :  that 
the  deputies  from  the  Upper  Towns  signified  to  the  President  "  their 
anxious  desire  to  engage  in  the  pursuit  of  agriculture  and  civilized  life, 
in  the  country  they  then  occupied ;"  that  the  nation  at  large  did  not  par- 
take of  this  desire  ;  that  the  upper  towns  wished,  therefore,  for  a  division 
of  the  country,  r.nd  the  assignment  to  them  of  the  lands  on  the  Hiwas- 
see  ;  that,  "  by  thus  contracting  their  society  within  narrow  limits,  they 
proposed  to  begin  the  establishment  affixed  laws,  and  a  regular  govern- 
ment ;  that  the  deputies  from  the  .lower  towns  wished  to  pursue  the 
hunter  life,  and  with  this  view  to  remove  across  the  Mississippi ;  that  the 
President  of  the  United  States,  "  after  maturely  considering  the  petitions 
of  both  parties,"  wrote  to  them  on  the  9th  of  January,  1809,  as  fol- 
lows :  "  The  United  States,  my  children,  are  the  friends  of  both  par- 
ties ;  and,  as  far  as  can  be  reasonably  asked,  they  are  willing  fo  satisfy 
the  wishes  of  both.  Those  who  remain  may  be  assured  of  ou.  ,>atron- 
age,  our  aid,  and  good  neighbourhood.  Those  who  wish  to  remove,  are 
permitted  to  send  an  exploring  party  to  reconnoitre,"  Ate.     That  in  the 


itate  upon 

ot  the  old 

that  13,  of 

He  shall 


»f  the  treaty 
pon  it — Sin- 
lotter— The 
in  these  pro- 


visions are 

It  forcibly 

Cherokeea, 

COMPACT 


he  Cherokee 
vernor  of  the 
snipotcntiary 
ad  meq,  and 
g  chief*,  head 
eir  deputies, 
I  of  the  Che- 
ttorney,  duly 
e." 

gh  to  make 
id  a  half,  is 
I  deputation 
igton :  that 
lent  "  tlieir 
ivilized  life, 
[lid  not  par- 
)r  a  division 

the  Hiwas- 

limits,  they 
ular  govern- 
)  pursue  the 
tpi ;  that  the 
the  petitions 
1809,  asfol- 
f  both  par- 
n^r  in  satisfy 

ou,  ^>atron' 
remove,  are 

That  in  the 


4ft 

same  letter,  the  President  added—"  When  the  parly  slinll  have  found  a 
tract  of  country  suiting  the  emigrants,  and  not  claimed  by  other  Indians, 
we  will  arrange  with  them  and  you  the  exchange  of  that  for  a  just  por- 
tion of  the  country  they  leave,  and  to  a  part  of  which,  proportioned  to 
their  numbers,  they  have  a  right;"  and  that  in  conclusion,  ho  told  the 
emigrating  Cherokces,  that  the  United  States  would  "still  onaider 
them  as  our  children,"  and  "  always  hold  themfrmly  by  the  hand.'' 

The  preamble  states  further,  that,  "  the  Cherokecs  relying  on  the 
promises  of  the  President  of  the  United  States,  as  above  recited,"  ex- 
plored the  country  west  of  the  Mississippi,  made  choice  of  land  to  which 
no  other  Indians  had  a  just  claim,  and  were  desirous  of  completing  the 
proposed  exchange  of  country. 

"  Now,  know  ye,"  concludes  the  preamble,  "  that  the  contractuiff  par- 
ties, to  carry  into  full  effect  the  before  recited  promises  with  good  faith, 
and  to  promote  a  continuation  of  friendship,"  dte.  &,c.  "  have  agreed 
and  concluded  on  the  following  articles  :" 

Art.  1.  "  The  chiefs,  head  men,  and  warriors,  of  the  whol's  Cherokee  nation, 
cede  to  the  United  States  all  the  lands  lying  north  and  east  of  the  following 
boundaries:"  [The   line  here  described  left  out  a  tract  of  land,  which  fell  into 

Art.  2.  The  Chcrokees  also  cede  certain  valuable  lands,  which  fall  into  the 
central  parts  of  Tennessee. 

Art.  3.  A  census  to  be  taken  with  a  view  to  ascertain  the  number  of  emigrants ; 
that  is,  the  number  of  Cherokecs  who  wish  to  remove  across  the  Mississippi. 

Art.  4.  The  annuities  to  be  divided  between  the  remaining  and  the  emigrating 
Cherokees,  in  proportion  to  their  numbers  respectively. 

Art.  5.  In  consideration  of  the  lands  ceded  in  the  first  and  second  articles  of 
this  treaty,  the  United  States  engage  to  give  an  equal  quantity  of  land,  acre  for 
acre,  between  the  Arkansas  and  White  rivers,  within  certain  boundaries  mentioned. 

This  article  closes  with  the  following  words:  "  And  it  is  further  stipulated,  that 
thf  reaties  heretofore  between  the  Cherokee  nation  and  the  United  States  are  to 
continue  in  full  force  with  both  parts  of  the  nation ;  and  both  parts  thereof  are  on- 
titled  to  all  the  immunities  and  privileges  which  the  old  nation  enjoyed,  under  the 
aforesaid  Ueatios;  the  United  States  reserving  the  right  of  establishing  factories,  a 
military  post,  and  roads  within  the  boundaries  above  defined." 

Art.  6.  The  United  States  to  make  full  compensation  for  the  improvements  on 
land  within  the  Cherokee  nation,  which  shall  have  belonged  ti  the  emigrating 
Cherokees,  and  to  furnish  flat- bottomed  boaUand  provisions  for  their  removal. 

Art.  7.  Improvements  on  land  ceded  to  tiie  United  States,  to  bo  paid  for  bj 
the  United  States.  There  is  a  provision,  also,  in  this  article,  that  the  profit  of  the 
improvements  mentioned  in  article  6th,  shall  be  applied  to  the  benefit  of  poor  and 
decrepid  Cherokees. 

Art.  8.  To  every  head  of  an  Indian  family,  residing  on  tho  lands  ceded  by  the 
Cherokees  in  this  treaty,  shall  be  allowed  a  section  of  land,  that  is  640  acres,  pro- 
vided ne  wishes  to  remain  on  his  land  thus  ceded,  and  to  become  a  citizen  of  tho 
United  States.  He  shall  hold  a  life  estate,  with  a  right  of  dower  to  his  widow,  and 
shall  leave  tho  land  in  fee  simple  to  his  children. 

Art.  9.  Both  parties  to' enjoy  a  free  navigation  of  rivers. 

Art.  10.  The  Cherokee  nation  cedes  to  the  United  States,  certain  small  reserv- 
ations, without  the  present  limits  of  the  nation. 

Art.  11.  The  boundary  lines  to  be  marked. 

Art.  12.  No  whites  to  enter  upon  the  lands  ceded,  till  the  treaty  "  shall  bo  rati- 
fied by  the  President  and  Senate  of  the  United  States,  and  duly  promulgated." 

Art.  13.  The  treaty  to  be  in  force  as  soon  as  thus  ratified. 

The  Treaty  was  signed  on  the  8th  of  July,  1817,  by  .\ndrew  Jackson,  and  the 
other  commissioners,  and  by  thirty-one  chiefs  and  warriors  for  the  Cherokees, 
who  expected  to  remain  east  of  the  Mississippi,  and  fifteen  chiefs  and  warriors  for 
the  emigrating  Cherokees,  in  the  presence  of  nine  witnesses.  It  was  ratified  by 
President  Monroe  and  the  Senate. 


46 

It  would  seem  as  though  the  public  affairs  of  the  Cherokces  had  been 
■o  ordered  by  Providence,  as  to  present  the  very  strongest  conceivable 
exiiibition  of  the  obligation  of  treaties.  It  has  usually  been  thought, 
that  if  a  single  plain  stipulation  were  made  between  two  nations,  and 
duly  ratified,  this  would  bind  the  parties.  I  am  now  examining  the  fif- 
teenth treaty  with  the  Cherokees,  every  one  of  which  is  perfectly  consis- 
tent with  every  other  ;  and  they  all  unite  in  leading  to  the  same  conclu- 
sion. As  if  this  were  not  sufficient,  the  individual  character  and  politi- 
cal consistency  of  uar  most  prominent  statesmen,  not  only  lend  their  aid 
to  confirm  these  national  compacU  ;  but  are  actually  personified,  as  it 
were,  and  embodied  in  the  treaties.  It  may  be  doubted  whether  there 
is  a  similar  instance  in  the  annals  of  mankind. 

General  Washington,  soon  after  the  organization  of  our  national  go- 
vernment, laid  the  basis  of  our  Indian  relations,  in  perfect  consistency 
with  the  principles  and  practice  of  the  early  settlers  and  colonial  rulers. 
Mr.  Jefferson  was  a  member  of  his  cabinet,  and  doubtless  intimately 
conversant  with  these  fundamental  measures.     The  five  first  Presidenla 
of  the  United  States  made  treaties  with  the  Cherokees,  all  resting  on 
the  same  acknowledged  principles.     Mr.  Jefferson,  the  third  President, 
having  pursued  the  policy  of  General  Washington  on  this  subject,  with 
more  undeviating  zeal  than  on  any  other  subject  whatever— being  about 
to  retire  from  the  chief  magistracy— and  standing  mid-way  between  the 
era  of  1789  and  the  present  year,  wrote  a  fatherly  letter  to  the  Chero- 
kees, giving  them  his  last  political  advice.     This  letter  is  preserved  by 
them  in  their  archives.     A  negotiation  is  held  with  them,  on  their  own 
soil,  or,  as  the  title  has  it,  "  within  the  Cherokee  nation,"  under  the  di- 
rection of  the  fifth  Presi.lent  of  the  United  States.     The  letter  of  Mr. 
Jefferson  is  produced  and  incorporated  into  a  treaty.     It  is  therefore 
adopted  by  the  people  of  our  land,  and  approved  as  among  the  national 
munimenU,  erected  for  the  defence  of  our  weak  neighbours.     What 
adds  to  the  singularity  of  the  transaction,  is,  that  this  letter,  reaching 
backward  and  forward  through  five  administrations,  is  adopted  in  the 
fifth,  by  a  negotiator,  who  is  now  the  seventh  President  of  the  United 
States ;  thus  bringing  all  the  weight  of  personal  character  and  political 
consistency  to  support  as  plain  stipulatioin,  as  can  be  found  in  the  Eng- 
lish language,  or  any  other.     May  it  not  be  said,  then,  that  the  case  of 
the  Cherokees  has  been  prepared  by  Providence,  that  we  may  show  to 
ourselves  and  to  the  world,  whether  engagements  can  bind  us ;  or  whe- 
ther the  imagined  present  interest  of  a  small  portion  of  the  American 
people  will  transform  itself  into  a  Samson,  and  break  national  treaties 
by  dozens,  and  by  scores,  "  a*  a  thread  of  tow  is  broken  when  it  touch- 
eth  the  fire  r  ,     ^^      , 

If  this  case  should  unhappily  be  decided  against  the  Cherokees, 
(which  may  Heaven  avert !)  it  will  be  necessary  that  foreign  nations 
should  bo  well  aware,  that  the  People  of  the  United  States  are  ready  to 
take  the  ground  of  fulfilling  their  contracts  so  long  only,  as  they  can  be 
overawed  by  physical  force ;  that  we  as  a  nation,  are  ready  to  avow, 
that  we  can  bo  restrained  from  injustice  by  fear  alone ;  not  the  fear  of 
God,  which  is  a  most  ennobling  and  purifying  principle  ;  not  the  fear  of 
sacrificing  national  character,  in  the  estimation  of  good  and  wise  men  in 
every  country,  and  through  all  future  time ;  not  the  fear  of  present 


» 


47 


!8  had  been 
:onceivable 
in  thought, 
lations,  and 
ling  the  fif- 
ictly  consia- 
,me  conclu- 
■  and  politi- 
iid  their  aid 
nified,  as  it 
lether  there 

national  go- 
consistency 
jnial  rulers. 
I  intimately 
t  Presidents 
I  resting  on 
i  President, 
ubject,  with 
•being  about 
between  the 

the  Chero- 
ireserved  by 
)n  their  own 
mder  the  di- 
etter  of  Mr. 
is  therefore 

the  national 
jurs.  What 
er,  reaching 
opted  in  the 
f  the  United 
and  political 
I  in  the  Eng- 
t  the  case  of 
may  show  to 
us ;  or  whe- 
le  American 
ional  treaties 
chen  it  totich- 

i  Cherokees, 
reign  nations 
are  ready  to 
3  they  can  be 
ady  to  avow, 
ot  the  fear  of 
ot  the  fear  of 
I  wise  men  in 
ir  of  present 


shame  and  public  scorn ;  but  simply,  and  only,  the  fear  of  bayonets  and 
cannon. 

But  what  duo!4  the  letter  of  .Mr.  Jeflbrson,  thus  ailopted  and  sanction- 
ed,  and  made  the  moiitli-piece  of  the  nation  ;  what  does  this  letter, 
written  aAcr  much  deliberation  and  much  experience,  and  on  the  eve 
of  quilting  public  life,  say  to  the  Cherokees?  It  says,  that  the  United 
States  will  always  regard  both  branches  of  the  Cherokee  nation  as  their 
children.  (A  good  father,  1  suppose,  does  not  tell  lies  to  his  children, 
nor  break  his  promises  to  them  ;  especially  promises  that  have  been 
often  repeated  during  the  lapse  of  many  years,  and  in  which  they  have 
confided  in  making  all  their  arranj,'emcnts  for  comfort  and  usefulness 
through  life.)  It  says  that  the  <  heroknes  of  the  Arkansas  must  not 
enter  upon  lands  claimed  hy  other  Indlatu,  thus  admitting  that  the  wild- 
est savages  have  a  claim  to  lands.  It  says,  that  all  the  individuals  of  the 
Cherokee  nation  hate  a  right  to  their  country;  and,  therefore,  if  a  part 
of  the  nation  surrenders  to  the  United  States  its  right  to  lands  east  of 
the  Mississippi,  it  must  receive  from  the  United  States  a  right  to  lands 
west  of  that  river.  It  says,  that  those  Cherokees,  who  choose  to  re- 
move, may  emigrate  with  the  good  wishes  and  assistance  of  the  United 
Slates,  and  that  those  who  remain,  may  be  assured,  (yes,  assured  is  the 
word  of  Mr.  Jefferson,  adopted  by  General  Jackson,)  "  may  be  assured 
of  our  patronage,  our  aid  and  good  neighbourhood."  It  would  be  dif- 
ncuU  to  make  any  comments  upon  this  passage,  which  would  add  to  the 
impression  which  it  cannot  fail  to  make  upon  every  fair  and  honourable 
mind. 

The  preamble  says,  that  the  Cherokees  relied  upon  the  promises  of 
the  President  of  the  United  States,  and  took  their  measures  accord- 
ingly. Why  should  they  not  rely  upon  his  promises  ?  No  President 
of  the  United  States  bad  broken  faith  with  the  Indians.  But  if  these 
very  promises,  and  a  tiiousand  others,  should  now  be  broken,  there 
will  be  an  end  of  reliance  on  our  promises  ;  and  out  of  tenderness  to 
my  country,  and  that  wo  might  not  be  unnecessarily  reminded  of  the 
infamy  thus  laid  up  in  store  for  future  generations,  I  could  heartily  wish, 
that  none  of  our  public  functionaries  may  ever  hereafter  make  a  pro- 
mise to  an  Indian. 


No.  XIII. 


Fourth  treaty  of  Waahington,  or  sixteenth  and  last  compact,  1819 — Abitraet  of 
the  treaty — Recognition  of  industrious  Cherokees — Permanent  school  fund  for 
Indians  east  of  Uie  Mississipi — Incorporation  of  the  Intercourse  Law  into  the 
treaty — Provisions  of  that  law — Incidental  recognition  of  the  rights  of  In- 
dians by  the  Supreme  Court  of  the  United  States. 

There  is  but  a  single  treaty  more  in  this  long  chain  of  negotiations. 
It  was  executed  on  the  27th  of  Februrary,  1819,  by  John  C.  Calhouii, 
then  Secretary  of  War,  for  the  United  States,  and  by  twelve  Cherokee 
Commissioners.     It  may  he  called 


THE  FOURTH  TREATY  OF  WASHLNGTON  ;    OR  THE  SIXTEENTH 
AND  LAST  NATIO.NAL  COMPACT  BETWEEN  THE  UNITED 
STATES  AND  THE  CHEROKEES. 
The  preamble  states,  that  "  the  greater  part  of  the  Cherokee  nation  have  ex- 


48 

nrcMed  an  ttniMt  iimin  io  remain  on  Ihta  lids  of  Uia  MiMiwippi,"  and  thai  they 
wmh  "to  cominonce  ll.o*e  m«a«uro.  whirh  t!iey  deesn  necMstry  to  the  ^'»'';"''"" 
and  prewrvatio,,  of  their  n»t.on  •."  they  therefor,  offer  to  cede  »»  t>r»  l^"'»«j 
Statei  a  tract  of  country  at  lea*t  aa  extenii»e  a*  the  United  Slatee  will  be  entitled 
to.  according  to  the  proviiioni  of  the  preceding  treaty.  „  ..    ,      .     ,. 

Aar.  1.  The  C:herokee  nation  cede,  to  the  United  State,  all  it.  land.,  lying 
north  and  ea.tof  the  following  line ;  f  IJy  thi.  houndary  con.iderable  tract,  of  land 
were  ceded,  which  fell  under  the  jurimliction  of  Alabama,  Tennewee,  and  Georgia. 
There  wa.  a  re«>rvation  of  about  ia),000  acre.,  lying  without  the  new  boundary, 
for  a  «:hool-fund  for  the  Cherokee..]  ...         .u     a  i.._ 

The  ceMion  in  thi.  article  to  be  in  full  .ati.faction  for  the  land,  on  the  Arkan- 
la.,  Kiven  by  the  United  State  in  the  next  preceding  Ueaty.  ..„;.„.. . 

Aar  2  The  United  State,  to  pay  for  impruvemenU  on  the  ceded  territory  j 
and  to  allow  a  re.ervation  of  6U)  acre,  to  each  head  of  a  family,  who  wuhe.  to 
remain,  and  become  a  citiien  of  the  Unitod  State.. 

Aar^a  A  re.ervation  of  640  acre,  to  each  of  31  p«r«)n.  mentioned  by  name, 
«all  of  whom  are  believed  to  be  perMn.  of  indu.try,  and  capable  of  managing 
their  property  with  diacrction."  i.  ^e .:„ut  „t\,.,  nmr 

There  were  al.o  eight  other  rewrTaUon.  of  640  acre,  to  each  of  eight  other  per- 

'"  A,t'"'4^The'''land  reaerved  for  a  echool  fund  to  b«  .old.  in  the  .ame  manner  as 
the  public  land,  of  the  United  State.,  and  the  proceed.  »e.ted  by  the  I're.ident  of 
the  Unitod  State,  the  annual  income  to  be  applied  "to  diffi-ao  the  benefit,  of  ed- 
ucation  among  the  Cherokee  nalionon  tkis  tide  of  the  Miuunppt. 

Aar  5.  Boundarie.  to  be  run  a.  pre«:ribed  in  former  troatie..  Int"'*""  ^°™ 
the  whito  .ettlement.  to  be  removod  by  the  United  State.,  and  proceeded  aga.n.t 
aceording  to  a  law  of  Congrew  which  wa.  enacted  March  JO,  \Wi. 

Aar.  6.  Two  third,  of  the  annuilie.  .hall  hereafter  be  paid  to  the  Cherokee,  on 
the  eaat,  and  one  third  to  thow  on  the  we.t  of  the  Mwi.iippi. 

A«T.  7.  The  ciUien.  of  the  Unitod  State,  not  to  entor  upon  the  ceded  land., 
before  Jan.  1, 1020. 

Aa  r.  8.  Thi.  treaty  to  be  binding  when  ratified. 

The  treaty  waa  ratified  by  Pre.ident  Munroe  and  the  Senate. 

The  preamble  of  this  last  treaty  declared,  that  the  Cherokees,  as  a 
body,  wished  to  remain  upon  their  ancient  territory,  with  a  v,ew  to  their 
national  preservation.  The  treaty  was  therefore  avowedly  made  w.h 
the  same  view.  This  is  perfectly  manifest  from  the  words  of  the  docu- 
■  ment ;  and  I  feel  warranted  in  saying,  that  the  Cherokee  chiefs,  (who 
consented  to  the  cessions  of  the  first  article  with  great  reluctance,) 
were  positivei'  and  solemnly  assured,  that  the  government  of  the  United 
States  did  not  intend  to  ask  them  to  sell  any  more  .and.  1  his  is  im- 
plied, indeed,  in  the  preamble,  which,  after  recognizing  »he  desire  of 
the  Cherokees  to  remain  and  become  civilized,  adds,  in  effect,  that  the 
cession  now  made  was  so  extensive,  as  not  to  require  any  future  cession. 

To  about  forty  individuals  specific  reservations  were  made  by  the 
third  article,  on  the  alleged  ground,  that  these  individuals  were  per- 
,ofu  of  industry,  capable  of  managing  their  property  ^^^.f'^f'^'.. 

A  very  small  portion  of  the  Cherokee  population  resided  tipon  the 
land  ceded  ;  yet  from  this  small  portion,  (excluding,  also,  those  wh° 
wished  to  ei^^igrate  from  the  ceded  district  to  the  Arkansas,)  about 
forty  heads  of  families  wer<!  selected,  ten  years  ago,  as  possessing  the 
character  above  described.  It  is  incontrovertible  that  the  Cherokee 
nation  has  been  improving  to  the  present  day.  . 

The  number  of  industrious  persons  has  been  greatly  increased,  as 
could  easily  be  shown  by  an  induction  of  particulars,  if  my  limits  wou  a 
allow.  The  words  of  the  treaty  are  not  more  plain,  therefore,  nor  its 
principles  more  just,  than  iU  spirit  is  humane  and  benevolent. 


#am.^.ii    ~ 


nd  thai  they 

t  riviliiation 

the  United 

ill  be  entitled 

Undi,  lying 
.rarta  of  land 
and  Oeorgia. 
)w  boundary, 

n  the  Arkan- 

ed  territory; 
'ho  wiehea  to 

led  by  name, 
of  managing 

[ht  other  per- 

ne  manner  aa 
B  t'reaident  of 
lenofita  of  ed- 

ntriiden  (Vom 
eeded  againat 

Cherokoea  on 

0  ceded  landa, 


■okees,  as  a 
view  to  their 
ly  made  with 
of  the  docu- 
chieft,  (who 
reluctance,) 
of  the  United 
This  is  im- 
(he  desire  of 
[feet,  that  the 
iture  cession, 
made  by  the 
s  were  •*  per- 
ditcretian." 
ded  upon  the 
J,  those  who 
ansas,)  about 
ossessing  the 
be  Cherokee 

increased,  as 
r  limits  would 
efore,  nor  its 
3nt. 


It 

TIm  fourth  article  looks  directly  at  the  permanent  residence  of  the 
Cherokees  on  the  ti'rritory  of  thrir  fathers.  Tho  lands  reserve,-!  for  a 
school  fund  have  not  yet  been  sold  ;  but,  wlien  the  treaty  was  Binned, 
it  was  supposed  that  they  would  sell  fur  a  grcai  sum  of  money.  Simi- 
lar lands,  not  far  distant,  had  been  sold  by  the  United  8tat«»  at  auction, 
a  year  or  two  before,  at  very  ((roat  prices.  The  principle  tract  reserved 
lies  on  thu  Tennessee,  and,  as  whs  thouf^ht,  would  produce  so  large  a 
capital,  that  tlie  interest  would  nfTord  the  means  of  education  to  all  the 
chddren  of  the  Cherokees.  What  is  to  be  done  with  this  sum  ?  The 
treaty  says,  the  President  of  the  United  States  shall  vest  it  as  a  per- 
manent fund  ;  and  that  the  annual  incomn  is  to  bo  applied  "  to  diffuse 
the  beneliUi  of  education  amoni;  the  Cherokee  nation  on  thU  tide  of  the 
MUaitnppi."  ileru  is  a  permanent  f>ind  for  a  specific  object  ;  and 
that  object  implies  the  permanent  existence  of  the  Cherokee  nation 
eastward  of  the  Mississippi. 

But  the  provision  of  the  fiflh  article  is  still  more  important  to  the 
Cherokees.  It  would  socni  as  if  every  contrivance  was  used,  which 
human  ingenuity  could  devise,  for  the  purpose  of  binding  the  faith  and 
constancy  of  the  United  States  to  a  just  and  honorable  course  with  the 
Indians.  The  integrity  of  their  territory  had  been  guaranteed  by  treaty. 
Rigorous  laws  had  been  enacted  for  the  punishment  of  intrutiers. 
These  laws  had  been  executed.  But  the  time  might  come  when  the 
laws  would  be  repealed  ;  and  when  Congress  would,  by  a  feeble  system 
of  legislation,  leave  the  Cherokees  defenceless.  In  order  to  guard 
against  this  species  of  bad  faith,  a  stipulation  is  here  inserted,  by  which 
a  certain  law  of  the  United  States,  so  far  as  it  relates  to  the  intrusion 
of  whites  upon  Indian  lands,  is  made  a  part  of  the  treaty.  Thia  law, 
therefore,  as  it  respects  the  Chernkeed,  cannot  be  repealed  by  Congress. 
It  is  to  be  considered  in  just  the  same  light,  as  if  all  those  parts  of  it, 
which  relate  to  intruders,  had  been  literally  copied  into  the  treaty.  Let 
us  then  look  at  some  of  its  provisions. 

By  the  law  of  March  30,  1802,  it  is  enacts,  (section  2,)  that  if*  any 
citizen  of  the  United  States  shall  cross  over,  or  go  within,  the  boundary 
line,  between  the  United  States  and  the  Indiana,  to  hunt,  or  in  any  wise 
destroy  the  game ;  or  shall  drive  horses,  or  ca  tie,  to  range  on  any  lands 
allotted  or  secured,  by  treaty  witii  the  United  States,  to  any  Indian 
tribes,  be  shall  forfeit  a  sum  not  exceeding  j^  100,  or  be  imprisoned  not 
exceeding  six  months.' 

By  section  6th,  it  is  enasted,  '  that  if  any  citizen  shall  make  a  set- 
tlement on  any  lands  belonging,  or  securetl,  or  granted,  by  treaty  with 
the  United  States,  to  any  Indian  tribe,  or  shall  survey,  or  attempt  to 
tttnep,  such  lands,  or  designate  any  of  the  boundaries  ly  marking  trou, 
or  otherwise,  such  offender  shall  forfeit  a  sum  not  exceeding  ^1,000,  and 
suffer  imprisonment  not  exceeding  t>.slve  montlia.'  In  the  same  sec- 
tion, the  President  is  armed  with  full  power  tn  take  such  measures,  and 
to  employ  such  military  force,  as  he  shall  judge  necessary  to  remove 
from  Indian  lands  any  person  who  should  "  attend  to  make  a  settiewtent 
thereon." 

There  are  other  provisions  in  the  act,  all  tending  to  the  protection 
of  the  Indians,  and  to  the  preservation  of  their  territory  ioviolate.    Thia 
general  Uw  is  now  in  force,  in  regard  to  all  the  Indians,  whoM  landi 
7 


i 


IT 


4i 


t 


ao 

•r«  tecured  to  them  by  treaty  ;  and  in  regard  to  the  Cherokee,  let  in« 
My  B((iin,  Cohgreai  cannot  repeal  it  ;  Ibr  il  i*  incorporataU  into  a 
solemn  national  compact,  which  cannot  bo  altered,  or  annulled,  without 
tbo  consent  of  both  parties. 

Within  a  few  months  pait,  ii  train  of  survcyori,  profewing  to  act 
under  th«  nulhority  of  Georgia,  have  made  an  irruption  into  the  Chero- 
Jiee  nation,  to  tho  great  anno)«nco  and  alarm  of  the  peaceable  inhabi- 
tknta.  These  agents  of  Georsia  havo  not  only  attempted  tc  survey, 
but  havo  actually  surveyed,  what  they  call  an  old  ('reck  boundary, 
which  they  havo  doubtless  deiignnteil  by  marking  trees,  and  otherwise. 
Thus  havo  they  done  the  very  thins,'  which  is  forbidden  by  the  6th  «ec- 
tion  above  quoted,  under  a  pcnulty  of  jj  1,000  and  twelve  months'  im- 
prisonment. ,      y^       ,    ,  1 

Even  if  the  people  of  Georgia  were  right,  as  to  the  Creek  boundary, 
they  are  not  the  pro|)er  persons  lo  v.^ccrtiin  the  fact.  fJoveral  treatiea 
between  the  United  States  and  the  Chorrkcest  provide,  tli;»t  boundaries 
■hall  bo  oscertained  by  comntiasionerM  appointed  by  the  United  Stales, 
accompanied  by  commiHsiuncrs  appointed  by  the  Cherokee  nation. 
Can  any  good  reason  be  assigned,  then,  why  the  President  should  not 
direct  a  prosecution  to  be  commenced  a(.':iinst  these  otFenders,  who 
have  trampled  on'  a  law,  which  is  of  vital  importance  to  sustain  the 
plighted  faith  of  the  nation  ? 

It  is  said  that  the  United  States  can  make  no  treaty  with  Indians 
living  within  the  limits  of  a  State  ;  that  is,  within  the  limits  of  what  op- 
pcars,  by  the  map,  to  be  one  of  the  United  States.  I  beg  leave  to  make 
A  distinction  between  a  State,  and  the  map  of  a  State  ;  not  having  yet 
seen  it  proved,  that  the  engraver  of  a  map  has  the  power  of  disinherit- 
ing a  whole  people,  and  delivering  their  property  into  the  hands  of 
others.  What  did  the  men,  who  formed  the  federal  constitution,  think 
of  the  extent  of  the  treaty-making  power  ?  This  appears  to  me  to  be 
a  pertinent  question.  It  is  certainly  a  question,  to  which  a  decisive 
answer  can  bo  given.  In  the  first  law  of  Congress,  on  the  subject  of 
intercourse  with  the  Indians,  which  was  enacted  under  our  present 
form  of  government,  the  fourth  section  reads  as  follows  : 

"That  no  mU  of  lands  made  by  any  Indians,  or  any  nation  or  tribe  of  Indians, 
within  the  United  States,  •hall  be  valid  lo  any  person  or  persons,  or  lo  any  Stale, 
whether  having  the  right  of  preemption  to  such  lands  or  not,  unless  the  wnie  aha^l 
be  made  and  duly  executed  at  $ome  public  tnaty,  held  under  the  authority  of  ihe 
United  S/a<e«."— [Judge  Story's  edition  of  U.  S.  Laws,  p.  109.] 

This  act  was  approved,  July  22,  1790  ;  only  sixteen  days  before  the 
execution  of  the  Creek  treaty,  in  the  city  of  New  York,  which  was 
described  in  my  fourth  number.  The  leading  members  of  Congress 
had  been  leading  members  of  the  Convention,  that  formed  the  federal 
constitution.  Their  exposition  of  that  instrument  will  not  be  contro- 
Terted  by  any  considerate  writer  or  speaker  ;  and  their  decision,  in  the 
section  just  quoted,  is  as  positive  and  peremptory,  as  can  well  be  ima- 
gined. The  same  provision  was  continued  in  subsequent  laws,  and  is 
found,  in  the  law  of  March  30,  1802,  in  these  words  : 

"  And  be  il  further  enacted.  That  no  purchase,  grant,  lease,  or  other  conveysiice, 
of  lands,  or  of  any  title  or  claim  thereto,  from  any  Indian,  ornation.ortribe  of  In- 
diani,  within  the  bounds  of  the  United  States,  shall  be  of  any  validity,  in  law  or 
•quity,  unleis  ths  suns  be  made  by  treaty  or  convention,  enUred  into  pursuant  to 


'#p' 


91 


Item,  let  in« 
a'.eii  into  a 
I  led,  without 

■ling  tG  acX 
J  tlie  Chero- 
uble  inhabi- 
d  ti;  lurveyi 
k  boundary, 
ti  otiicrwiie. 
tlie  6th  «ec- 
nionths'  im- 

!>k  boundary, 
'eial  treaties 
t  bouiulurics 
iiiited  States, 
okce  nation. 
i)t  should  not 
Fenders,  who 
to  sustain  the 

with  Indium 
s  of  wliat  op- 
cave  to  make 
ot  having  yet 
of  disinherit- 
the  hands  of 
titution,  think 
s  to  me  to  be 
lich  a  decisive 
the  subject  of 
r  our  present 

tribe  of  Indians, 

,  or  to  any  Stale, 

ii  the  lanie  ihall 

authority  of  ihe 

lays  before  the 
rk,  which  was 
B  of  Congress 
ed  the  federal 
not  be  contro- 
ecision,  in  the 
well  be  ima- 
!Dt  laws,  and  is 


ther  conveyance, 
on,  or  tribe  of  In- 
Jidity,  in  law  or 
into  puraosnt  to 


the  eonetitutien :  kni  \\  ■fiatt  W  a  miidtmeanor  In  any  ptrtoa,  not  implaye^  lui. 
«l*r  tiia  aiilhority  of  the  i'nited  Ststss,  lo  nrifufiiit*  •iitli  tretty  or  nonverjtion,  dU 
reetiy  oi  indirectly  lo  treat  with  any  iuoli  Indun  nation,  or  tribe  of  Indian".  Tortli* 
title  or  purcliaie  of  an/  landa  by  llmm  held  or  claimed,  puniihable  by  finn,  not  ei- 
eeeding  one  thouiand  dolUra,  and  inipriaonniont,  not  etcetiding  twelve  iMonlhi." 

Then  follow!  a  pro»i»o,  that  an  agent  from  a  State  may  bo  prct«nt,aitd  propoae 
Urms,  when  coirimiMionere  of  the  United  Mtatee  are  treating  with  the  Indiana. 

In  accordance  with  the  constitution,  and  with  the  express  provisions 
of  these  national  laws,  it  has  b«;en  the  universal  practice  to  obtain  cet- 
■ions  of  Indian  lands  through  the  medium  of  trcaticM,  made  under  th« 
•uthority  of  the  (United  Stati's.  No  fewer  than  nine  of  these  treaties 
have  been  dulv  formed  and  ratified,  in  rcL'nrd  to  small  reservations  of 
Indian  territory,  in  the  single  State  of  Now  York.  That  great  and 
powerful  State  has  never  yet  complained  that  its  rights,  "  as  a  sovereign 
■nd  independent  State,"  are  in  any  way  endnn>rered  or  abridged,  by  a 
faithful  adherence  to  the  letter  and  spirit  of  the  federal  constitution. 

Thus,  Messrs.  Editors,  I  have  gone  through  the  long  list  of  treatiei 
which  our  country  has  made  with  the  Cherokeea,  and  which  have  re- 
ceived the  highest  sanction  of  the  legislative  and  executive  branchea 
of  our  government ;  and  which,  no  «loul)t,  will  receive  the  sanction  of 
the  judiciary,  whenever  regularly  brought  before  it.  The  Judges  of  th« 
Supreme  Court  of  the  United  States  long  since  declared,  incidentally, 
that  the  United  States  are  bound  by  treaties  to  the  Indians.  Mr.  Jus- 
tice Johnson  said,  nineteen  years  ago,  (6  Cranch,  p.  147,)  "innumera- 
ble treaties  'ormed  with  them,  [the  Indian?,]  acknowledge  them  to  be 
an  independent  people ;  and  the  uniform  practice  of  acknowledging  their 
right  of  soil,  and  restraining  all  persons  from  encroaching  upon  their 
territory,  makes  it  unne'^cssary  to  insist  upon  their  right  of  soil."  Chief 
Justice  Marshall  said,  that  the  Indian  title  "  is  certainly  to  be  respected 
by  all  courts,  until  it  be  legitimately  extinguished"  This  is  enough  for 
the  perfect  defence  of  the  Cherokces,  till  they  voluntarily  surrender 
their  coyntry  ;  such  an  act  on  their  part  being  the  only  way  in  which 
their  title  can  be  legitimately  extinguished,  so  long  as  treaties  are  the 
supreme  law  of  the  land. 


No.  XIV. 


Apology  for  thie  prolonged  discussion— The  people  of  the  United  SUtes  are  jury- 
men in  the  caee,  and  muit  hear  it— The  Cherokoes  have  rcfuied  to  treat  for 
ten  yeare— Scruples  of  Georgia  about  the  treaty  naking  power— Perfect  con- 
aiitency  of  treatioe- No  evidcnoo  to  tlio  contrary— Laws,  treaUca,  common 
sense,  justice,  ail  on  the  side  of  tlio  Chorokecs. 

It  is  well  known,  Messrs.  Editors,  thaUa  long  series  of  numbers,  oa 
a  single  subject,  is  not  apt  to  be  read  ;  especially  if  it  be  of  the  nature 
of  a  legal  or  diplomatic  discussion.  On  this  account,  I  have  felt  many 
misgivings,  in  calling  upon  the  public  to  follow  me  from  one  stage  to 
another  of  the  negotiations  with  the  Cherokees ;  but  I  have  been  ad- 
vised, that  no  part  of  the  preceding  numbers  could  be  omitted  without 
injury  to  the  cause.  If  I  were  arguing  this  question  before  the  Su- 
prenM  Court  of  the  United  States,  simple  references  would  be  iuffi- 


i 


4 


oient  in  many  cases,  where  I  have  felt  it  necessary  to  make  quotations. 
Yet  I  think  any  candid  lawyer  will  admit,  that,  if  he  were  pleading  the 
cause  of  the  Indians  before  the  highest  tribunal  in  our  country,  he  would 
be  constrained,  by  faithfulness  to  his  clients,  to  dwell  much  longer  upon 
some  topics  than  I  have  done.  Let  it  be  remembered,  that  those  mem- 
bera  of  the  American  community,  who  may  be  justly  denominated 
honest  and  intelligent,  are  to  decide  this  question ;  or  at  least,  that  they 
may  decide  it  properly,  if  they  will  take  the  trouble  to  understand  it, 
and  will  distinctly  and  loudly  express  their  opinion  "?»"»». 

And  here  let  me  humbly  intreat  the  good  people  of  the  United  States 
to  Uke  this  trouble  upon  themselves,  and  not  to  think  it  on  unreasona- 
ble task.  Let  every  intelligent  reader  consider  himself  a  juryman  in  the 
case ;  and  let  him  resolve  to  bring  in  such  a  verdict,  as  he  can  hereafter 
regard  with  complacency.  It  is  not  a  single  man,  who  is  on  trial,  and 
who  may  lose  his  life  by  the  carelessness  of  the  jury.  Sixty  thousand 
men,  women,  and  children,  in  one  part  of  the  United  States,  are  now  in 
constant  expectation  of  being  driven  away  from  their  country,  in  such  a 
manner  as  they  apprehend  will  result  in  their  present  misery  and  speedy 
extermination  :— sixty  thousand  human  beings,  to  whom  the  faith  of  the 
United  States  has  been  pledged  in  the  most  solemn  manner,  to  be  driven 
away— and  yet  is  it  possible  that  the  people  of  the  United  States  should 
be  unwilling  to  hear  their  story,  or  even  to  require  silence  till  their  story 

can  be  heard  ?  ,    ,       . 

I  am  encouraged,  Messrs.  Editors,  to  proceed,  by  the  assurance, 
which  has  reached  me  from  different  quarters,  that  our  community  is 
not  callous  to  every  feeling  of  justice  and  honor,  in  relation  to  the  In- 
dians ;  that  there  is  a  greater  disposition  to  inquire  on  this- subject,  Uian 
on  any  other  now  before  the  public  ;  and  that  even  my  numbers,  defi- 
cient as  they  are  in  vivacity,  are  extensively  read  with  that  interest,  which 
Ihe  magnitude  of  the  cause,  in  all  its  bearings,  may  well  excite. 

A  few  remarks  upon  the  treaties  with  the  Cherokees  may  not  be  use- 
less. . , 
It  is  a  natural  inquiry.  Have  there  been  any  attempts  to  treat  with 
this  nation,  since  the  year  1019?    There  have  been  many;  and  al- 
though the  politicians  of  Georgia  now  think  that  the  United  States  have 
no  power  to  make  treaties  with  the  Indians,  it  is  not  more  than  one  or 
two  years  since  they  were  urging  Ccngress  to  make  appropriations  for 
this  object,  and  pressing  the  executive,  to  procure  the  Cherokee  country 
by  negotiation.     In  regard  to  this  matter,  they  have  been  extremely  im- 
portunate.    Mr.  Monroe  was  teased  by  them  during  his  whole  presi- 
dency.   Their  scruples,  as  to  the  extent  of  the  treaty-making  power, 
are  of  quite  recent  origin  ;  and  it  is  supposed,  that  they  would  not  ve- 
hemently remonstrate,  if  a  treaty  should  now  be  made,  the  terms  of 
which  should  compel  the  Cherokees  to  lake  up  their  residence  under 
the  shade  of  the  Rocky  Mountains.     The  scruples  about  the  treaty-mak- 
ing power  seem  not  to  have  existed,  till  after  the  Cherokees  refused  to 
•  treat  any  more.     When  chiefs  and  people  had  thus  refused,  at  home 
and  abroad,  in  their  own  territory  and  at  Washington ;— When  they 
had  declared  in  writing,  that  there  was  not  money  enough  in  our  na- 
tional treasury  to  purchase  an  additional  foot  of  Cherokee  land  ;  and 
when  thasa  declarations  were  made  with  a  determination  and  coniUncy, 


■*.5^  -«—  >t^.^^-£.«?t->«»*'«.***-*«*««4tat-i*t». 


A3 


ike  quotations, 
re  pleading  the 
nlry,  be  would 
ch  longer  upon 
^at  those  mem- 
y  denominated 
least,  that  they 
}  understand  it, 
it. 
e  United  States 

an  unreasona- 
L  juryman  in  the 
le  can  hereafter 

is  on  trial,  and 
Sixty  thousand 
ites,  aru  now  in 
untry,  in  such  a 
sery  and  speedy 
I  the  faith  of  the 
ler,  to  be  driven 
ed  States  should 
:e  till  their  story 

the  assurance, 
ir  community  is 
lation  to  the  In- 
his*  subject,  tlian 
y  numbers,  defi- 
it  interest,  which 
ill  excite, 
may  not  be  use- 

>t8  to  treat  with 
many ;  and  al- 
nitcd  States  have 
nore  than  one  or 
ppropriations  for 
i^herokee  country 
en  extremely  im- 
his  whole  presi- 
y-making  power, 
ley  would  not  ve- 
ide,  the  terms  of 
residence  under 
It  the  treaty-mak- 
rokees  refused  to 
refused,  at  home 
on; — When  they 
ough  in  our  na- 
srokee  land  ;  and 
on  and  constaoey* 


which  left  no  hope  of  forming  a  treaty  ; — then  it  was  discovered,  that  th« 
government  of  the  United  States  possessed  no  power  to  muke  a  treaty. 
There  is  a  provision  in  the  treaty  of  Hopewell,  (the  Hrst  treaty  in  the 
long  series,)  similar  to  the  proposal  mads  to  the  Delawares  ;  viz.  '  That 
the  Cherokecs  may  send  a  deputy  of  their  choice  to  Congress.'  On 
this  provision  I  omitted  to  make  a  remark,  in  the  proper  pluce,  which 
may  be  introduced  here.  Though  the  treaty  of  Hopewell  was  formed 
under  the  old  confederation,  it  is  not  the  less  binding  on  that  account ; 
and  good  faith  would  now  require,  that  the  Cberokees  should  be  allow- 
ed a  privilege,  as  nearly  as  possible  tantamount  to  what  would  have  been 
the  privilege  of  sending  a  deputy  to  the  Old  Congress.'' 

Here  then  we  have  sixteen  treaties  with  the  Clierokees,  negotiated 
from  1785  to  1819,  ratified  by  five  presidents,  all  resting  on  the  same 
principles,— all  consistent  with  each  other, — and  all  now  in  force,  ex- 
cept that  some  parts  may  have  become  obsolete  by  subsequent  stipula- 
tions on  the  same  subjects.  The  earlier  treaties  are  repeatedly  and 
solemnly  recognized  by  later  ones.  An  ofhcial  letter  of  Mr.  JeiTerson 
is  curiously  wrought  into  a  treaty,  so  as  to  form  a  connecting  bond  to 
the  whole  system.  In  the  last  treaty  of  all,  negotiated  by  the  present 
Vice  President  of  the  United  States,  a  law  of  Cr>ngress  is  introduced 
for  the  permanent  defence  of  the  Cherokees. 

If  we  look  into  other  treaties  with  Indians,  from  the  Delaware  treaty 
of  1778,  (from  which  a  quotation  was  made  in  my  ninth  number,)  to  the 
Creek  treaty  of  1826,  the  same  inviolable  territory,  the  same  solemn 
guaranty,  the  same  proffer  of  friendship  and  good  neighbourhood,  will 
every  where  be  found.  So  many  treaties  had  been  formed  with  Indians 
previously  to  1810,  that  Mr.  Justice  Johnson  pronounced  them  "innu- 
merable." In  none  of  these  treaties  is  the  original  title  of  the  Indiana 
declared  to  be  defective.  In  noae  of  them  is  it  said,  that  Indians  have 
not  the  power  of  self-government ;  or  that  they  must  come  under  the 
government  of  the  several  States.  In  no  case,  have  the  Indians  signed 
away  their  inheritance,  or  compromitted  their  independence.  They  have 
never  admitted  themaeives  to  be  tenants  at  will,  or  tenants  for  years. 
Upon  the  parchnoent  all  stands  fair  ;  and,  so  far  as  their  present  engage- 
ments extend,  they  are  under  no  more  obligation  to  leave  their  country, 
than  are  the  inhabitants  of  Switzerland,  to  leave  their  native  moun- 
tains. 

What  is  the  evidence  brought  against  this  mighty  mass  of  treaties  ? 
Nothing  ;  absolutely  nothing.  The  Secretary  of  War  merely  says,  that 
the  Cherokees  were  permitUd  to  remain  on  the  lands  of  Georgia.  But 
where  is  his  authority  ? 

If  we  turn  from  treaties  to  the  laws  of  the  United  States,  we  find  the 
whole  system  of  legislation  mado  in  exact  accordance  with  the  treaties. 
Nearly  all  these  compacts  requ  red  ipproi^tiations  of  money.  When 
the  appropriations  were  made,  the  trt  .'tties  came  of  course  under  the 
view  of  both  houses  of  Congress ;  and  every  such  appropriation  was  of 
course  an  assent  of  Congress  to  the  treaty. 

Besides,  some  of  the  most  important  articles  of  treaties,  were  taken 
from  previously  existing  laws  of  Congress.     Thus,  tlie  1 1th  article  of 

*  Some  other  lomarks,  on  the  treaty  of  Hopewell,  are  anticipated  in  the  third 
number,  m  publiahed  in  thii  pamphlet,  p.  13,  and  mie  therefore  omitted  here. 


urn'- 


IT 

i 


tlia  tiMty  of  Holston,  U  taken  from  the  treaty  made  witli  the  Creeks  at 

New  York,  August  7,  1790,  where  it  was  inserted  verbatim  from  "an 
act  to  regulate  Irade  and  intercourse  wilh  the  Indian  tribes,"  which  waa 
approved  by  President  Washington,  oidy  sixteen  days  before.  Thia 
discovery  I  have  just  made,  and  consider  it  as  decisive  evidence,  that 
the  treaty  wilh  the  Creeks  was  a  measure  of  great  deliberation,  and  that 
the  eminent  men  of  that  day  laboured  to  make  every  part  of  their  politi- 
cal system  harmonize  with  every  other  part. 

If  we  leave  both  laws  and  treaties,  and  look  at  the  conduct  of  our 
government  toward  the  Indians,  we  find  the  decliM-ations  of  Indian  agents 
to  have  been  always  directed  to  this  one  point:  viz.  to  satisfy  the  In- 
dians, that  the  government  would  deal  justly  and  faithfully  by  them, — 
would  perform  all  its  engagements, — and  would  secure  to  them  the  per- 
manent possession  of  their  country.  They  were  constan'Vv  urged  to 
become  farmers,  to  educate  their  children,  aiid  form  a  regular  govern- 
ment for  themselves  ;  and  all  this,  avowedly,  with  a  view  to  their  per- 
manent residence.  This  was  done  by  General  Washington — by  Mr. 
Jefferson,  by  Mr.  Madison,  by  Mr.  Monroe,  as  can  be  shown  from 
published  documents  ;  and  probably  by  the  elder  Adams  nnd  his  son. 

To  treaties,  laws,  usage, — every  public  and  every  private  pledge,-— 
are  to  be  added  the  dictates  of  »-cason  and  common  sense,  and  the  prin- 
ciples of  immutable  justice.  All  these  stand  on  the  side  of  the  Chero- 
keos.  Still  Georgia  demands  all  the  land,  which  lies  within  what  are 
called  her  chartered  limits.  The  nature  of  this  demand  will  be  examined 
hereafter. 


No.  XV. 


Complainti  of  Georgia— The  qneition  between  Georgia  and  the  Cherokeei,  if  no 
other  party  wore  concerned— Claim*  on  the  ground  of  civiliiation— Aniwer  of 
the  Cherokeee— Replication  of  Georgia— Doctrine  of  Vattei— It  docs  not  apply 
to  thia  ca«e— Valtere  opinion  of  the  Puritans  and  Penn— The  Cherokee*  not 
nndcr  the  jurisdiction  of  Georgia- 
It  has  appeared,  in  the  preceding  discussion,  that  the  United  Slates 
have  entered  into  solemn  engagements  with  the  Cherokees,  by  which 
we  are  bound,  as  a  people,  to  defend  their  title  and  their  sovereignty, 
and  to  protect  them  from  every  species  of  encroachments  and  aggres- 
sion.    If  this  be  not  the  obvious  meaning  of  numerous  and  "PJ®" 
ctipulations,  it  will  bo  impossible  to  frame  articles  in  the  English  lan- 
guage, whic!<  shall  express  any  meaning  whatever. 

But  Georgia  complains  that  the  government  of  the  United  Slates 
transcended  its  powers  in  making  these  engagements,  which  are  there- 
fore to  be  considered  null  and  void.  The  reader  must  bear  in  mmd, 
that  this  complaint  of  Georgia  is  not  of  long  standing.  Indeed,  I  ain 
hot  certain  that  the  legislature  has  expressed  it ;  but  the  leading  men  of 
that  State,  and  some  of  the  newspapers,  are  loud  in  making  and  repeat- 
ing it.  Till  very  recently,  as  was  mentioned  in  my  last,  the  authorities 
of  Georgia  have  been  urging  the  United  States  to  make  treaties  with 
the  Indians. 


,  - ..-  ii,^\.-iii>.m's^ 


^i?-'*^->«»Ww^^w— ^'' 


M 


the  Creeks  ftt 

Hm  from  *'  an 
is,"  which  was 
before.  Thia 
evidence,  that 
ation,  and  that 
of  their  pohti- 

onduct  of  our 
f  Indian  agents 
satisfy  the  lo- 
lly by  them, — 
>  them  the  per- 
ai\'\y  urged  to 
eguiar  govem- 
t  to  their  per- 
igton — by  Mr. 
&  shown  from 
nnd  his  son. 
vme  pledge, — 
I,  and  the  prin- 
of  the  Chero- 
rithin  what  are 
ill  be  examined 


iCherokeei,  ifno 
ition — Answer  of 
It  docs  not  apply 
le  CberokeM  not 


)  United  States 
kees,  by  which 
ir  sovereignty, 
ts  and  aggres- 
19  and  express 
e  English  Ian- 
United  States 
hich  are  there- 
bear  in  mind, 
Indeed,  I  am 
leading  men  of 
ing  and  repeat- 
the  authorities 
Le  treaties  with 


In  order  to  come  to  a  AilI  uniientandinfr  oC  this  case,  in  all  its  bear- 
ings, let  ua  in(iufre  how  the  controversy  wouM  present  itaelf,  if  the  old 
thirteen  States,  after  obtaining  their  inde|>en<leiico,  had  never  formed 
any  systsm  of  confederation  whatever,  and  ouch  Slnto  were  entirely,  ami 
in  all  respects,  independent  of  every  other  State.  The  whole  question 
at  issue  would  then  lie  uetwecn  Cleori^ia  nnd  the  Ciicrokot'S.  Neither 
South  Carolina,  nor  any  other  State,  would  liuvo  nny  right  to  interfere, 
however  oppressively  Georgia  might  conduct  herself  toward  the  Indians  ; 
unless,  indeed,  South  Carolina,  or  sonio  other  State,  had  nindo  a  treaty 
with  the  Chcrokees,  of  the  nature  of  an  alhanrooirenMivo  und  defensive. 
On  this  supposition,  both  the  allies  would  have  n  rurlit,  by  the  laws  of 
nations,  to  speak  to  Georgia  and  to  be  heard.  But  wo  will  suppose,  that 
the  Chcrokees  had  made  no  treaty  willi  any  community  upon  earth,  and 
were,  as  to  tiieir  mode  of  living,  pieciscly  in  their  present  condition  ; 
that  is,  peaceably  engaged  in  agricultural  pursuits,  and  providing  for 
their  own  families  by  the  labour  of  tlioir  own  hands. 

In  these  circumstances,  the  people  of  Georgia  ask  the  Cherokoes  to 
'remove  ;  who,  in  their  turn,  demand  the  reasons  of  so  extraordinary  a 
request.  And  here  let  me  say,  no  good  reasons  can  be  given  ;  no  rea- 
sons, which  an  honest  man  would  not  be  aslminod  to  give,  in  any  private 
transaction.  But  I  will  fairly  state  all  the  reasons,  which  have  come  to 
my  knowledge,  and  would  wisli  the  reader  to  allow  them  every  particle 
of  weight  to  which  they  are  entitled. 

The  Georgians  say  to  the  Chcrokees  j  "  Wo  are  &  civilized  people ; 
you  are  &  vagrant,  hunting,  and  savage  people.  By  virtue  of  this  dis- 
tinction, the  lands  which  you  occupy,  and  which  your  fathers  called  their 
bunting  grounds,  belong  in  reality  to  us  ;  und  wo  must  tako  possession. 
The  writers  on  the  law  of  nations  bear  us  out  in  iho  demand." 

To  such  a  statement  the  Cherokecs  might  justly  reply  :  "  We  are  not 
about  to  dispute  as  to  your  being  a  civilized  people,  though  the  manner 
of  urging  this  demand  of  the  houses  and  lands  of  your  poor  neighbours, 
argues  neither  great  modesty  nor  benevolence.  Wo  do  not  profess  to 
be  learned  in  the  law  of  nations  ;  but  wo  road  tlio  Bible,  and  have 
learned  there  some  plain  principles  of  right  and  wrong.  The  Governor 
of  the  world  gave  us  this  country.  V.'o  are  in  peaceable  possession. 
We  have  never  acknowledged  any  earthly  lord  or  lovoroign.  If  our 
Creator  has  taken  away  our  land  and  given  it  to  you,  wo  should  like  to 
see  some  proof  of  it,  beside  your  own  assertion.  Wo  hove  road  in^the 
book,  which  we  understand  you  to  acknowledge  as  the  word  of  God, 
that,  ••<ooppre«»  a  «<ran^er  wrongfully''  is  a  mark  of  groat  national 
wickedness. 

"  But  we  are  not  the  sort  of  people  that  you  tako  us  to  bo.  We  are 
not  vagrants,  like  some  tribes  of  which  wo  have  hoard  ;  nor  were  our 
fathers.  They  always  had  a  fixed  place  of  residonco.  And  as  to  our 
wand^^ring  about,  we  have  not  the  time.  We  are  busy  with  our  crops ; 
and  many  of  us  do  not  go  so  far  as  our  nearest  county  court  once  a 
year,  unless  called  out  as  jurymen.  We  do  not  hunt.  Not  a  family 
within  our  bounds  derives  its  subsistenco  from  the  chase.  As  to  our 
being  savages,  we  appeal  to  the  white  men,  who  travel  on  our  turnpike 
roftds,  whether  they  receive  any  ill  treatment.  We  have  a  legislature 
and  (i  judiciary,  and  the  judges  of  our  supreme  court  are  very  rigid  in 


I    '[ 


ifl 


56 

punishing  immorality.  We  have  herds  of  cattle,  farms  and  houses,  milia 
and  looms,  clothing  and  furniture.  We  are  not  rich  ;  but  we  contrive, 
by  our  industry,  to  provide  against  hunger  and  nakedness  ;  and  to  lay  up 
something  comfortable  for  winter.  Besides  these  things,  we  have  schools 
and  places  of  public  worship.  Judge  ye,  whether  we  are  such  a  sort  of 
people,  as  the  writers  on  the  laws  of  nations  had  in  their  minds,  when 
they  talked  of  vagrants,  hunters,  and  Bavages.-" 

To  this  the  Georgians  rejoin  :  "  But  you  had  no  business  to  betake 
yourselves  to  an  agricultural  life.  It  is  a  downright  imposition  upon  us. 
This  is  the  very  thing  that  we  complain  of.  The  more  you  work  on 
land,  the  more  unwilling  you  are  to  leave  it.  Just  so  it  is  with  your 
schools ;  they  only  serve  to  attach  you  the  more  strongly  to  your  coun- 
try. It  is  all  designed  to  keep  us,  the  people  of  a  sovereign  and  inde- 
pendent State,  from  the  enjoyment  of  our  just  rights.  We  must  refer 
you  to  the  law  of  nations  again,  which  declares  that  populous  countries, 
■whose  inhabitants  live  by  agriculture,  have  a  right  to  take  the  lands  of 
hunters  and  opply  them  to  a  better  use."  , 

In  answer  to  this  legal  argument,  the  Cherokees  have  only  to  say, 
that,  even  if  Vattel  had  the  power,  by  a  flourish  of  his  pen,  to  dispossess 
a  nation  of  its  patrimonial  inheritance,  the  present  case  does  not  come 
within  the  limits  which  he  has  prescribed.  Georgia  is  not  populous. 
She  has  many  millions  of  acres  of  unoccupied  land.  The  Cherokees 
are  not  an  "  erratic  people,"  to  use  the  phrase  of  Vattel ;  so  that  nei- 
ther part  of  the  case  answers  to  the  description. 

When  Georgia  shall  have  a  hundred  souls  to  the  square  mile  ;  (and 
her  soil  is  capable  of  sustaining  a  larger  number  than  that ;)  the  Chero- 
kees may  have  four  times  as  many  to  the  square  mile  as  Georgia  now 
contains. 

If  any  one  has  the  curiosity  to  read  what  Vattel  has  said  on  this  sub- 
ject, he  will  find  it  in  sections  81  and  209  ;  where  he  will  also  find  a 
commendation  of  the  manner  in  which  the  Puritan  settlers  of  New 
England,  and  the  great  founder  of  Pennsylvania,  obtained  possession  of 
the  lands  of  the  natives,  viz  :  by  the  consent  of  the  occupants,  and  not 
by  a  reliance  on  the  charters  of  kings. 

Thus  stands  the  case  on  the  law  of  nations ;  and  if  Vjittel  were  ad- 
mitted as  absolute  authority,  and  the  Cherokees  were  left  to  their  naked 
right,  undefended  by  any  compact,  either  with  Georgia  or  the  United 
States,  they  would  have  nothing  to  fear.  No  respectable  lawyer,  unleas 
he  is  entirely  deranged  in  his  intellect,  as  a  consequence  of  violent  party 
feelings,  will  say  that  the  doctrine  of  Vattel  would  take  the  lands  of  the 
Cherokees,  and  give  them  to  Georgia. 

But  it  is  added,  that  the  Cherokees  are  in  the  chartered  limits  of 
Georgia ;  and  it  is  triumphantly  asked,  "  Cannot  Georgia  govern  her 
own  territory  ?  Is  she  not  entitled  to  her  own  property  ?"  This  state- 
ment of  the  case  is  a  mere  begging  of  the  question.  It  is  not  admitted 
that  the  Cherokees  are  now,  or  ever  were,  in  the  State  of  Georgia,  in 
any  such  sense  as  is  implied,  by  the  confident  tone  here  assumed.  They 
have  never  acknowledged  themselves  to  be  in  the  State  of  Georgia.  The 
laws  of  the  United  States,  and  the  11  th  article  of  the  treaty  of  Holston, 
irresistibly  imply,  that  Indian  territory  is  not  within  the  jurisdiction  of 
any  Sute,  nor  within  the  jurisdiction  of  any  territorial  district  of  the 


id  houses,  mills 
tut  we  contrive, 
! ;  and  to  lay  up 
we  hav«  schools 
e  such  a  sort  of 
iir  minds,  when 

sincss  to  betake 
tosition  upon  us. 
■e  you  work  on 

it  is  with  your 
ly  to  your  coun- 
rcign  and  inde- 

We  must  refer 
)ulous  countries, 
ike  the  lands  of 

1 
ve  only  to  say, 

en,  to  dispossess 

;  does  not  come 

is  not  populous. 

The  Cherokeea 

el ;  so  that  nei- 

uare  mile ;  (and 
liat ;)  the  Chero- 
as  Georgia  now 

said  on  this  sub* 
i  will  also  find  a 
settlers  of  New 
led  possession  of 
icupants,  and  not 

'  Vfittel  were  ad- 
eft  to  their  naked 
ia  or  the  United 
)le  lawyer,  unless 
e  of  violent  party 
3  the  lands  of  the 

bartered  limits  of 
orgia  govern  her 


?"    This  state- 


It  is  not  admitted 
e  of  Georgia,  in 
e  assumed.  Thqr 
I  of  Georgia.  The 
treaty  of  Holston, 
he  jurisdiction  of 
al  district  of  the 


.       m 

United  States.  It  seems,  however,  that  our  national  statute-book  is  of 
very  light  authority,  when  compared  with  the  supposed  tonclusions  of  a 
philosophical  writer,  whose  theories  are  produced  as  the  arbiters  of  a 

people's  tloatiny.  ,,,,,•       . 

Let  me  ask  here,  whence  did  the  Secretary  of  VVar  denve  the  power 
of  repealing  an  act  of  Congress  ?  This  ia  a  plain  question  ;  and  the 
people  of  the  United  States  would  like  to  receive  a  plain  answer.  Whence 
did  he  derive  the  power  to  sot  aside  existing  treaties  ?  The  treaties  and 
the  laws  assume,  in  the  most  unequivocal  manner,  th&t  the  Cherokeea 
are  not  under  the  jurisdiction  of  Georgia,  nor  of  any  other  State,  nor  of 
the  United  States  ;  that  citizens  of  the  United  States  have  no  right  to 
enter  the  Indian  country,  except  in  accordance  with  treaty  stipulations  ; 
that  it  is  a  high  misdemeanor,  punishable  by  fine  and  imprisonment,  for 
any  such  citizen  to  attempt  to  survey  Indian  lands,  or  to  mark  trees  up» 
on  them  ;  and  that  the  Indian  title  cannot  be  exjlinguished,  except  by 
the  consent  of  the  Indians,  expressed  by  a  regular  treaty.  Yet  the  Secre- 
tary  of  War  seems  never  to  have  known  that  any  such  laws  or  treaties 
are  in  existence.  Is  he  not  aware  of  all  this  ?  or  does  he  really  think 
he  has  power  io  annul  treaties  and  repeal  laws,  according  to  his  sense  of 
convenience  and  propriety  ? 

But  this  is  a  digression.  Having  shown,  as  it  seems  to  me,  that 
Georgia  can  gain  nothing  by  an  appeal  to  the  law  of  nations,  I  propose 
to  inquire  briefly,  what  support  she  can  derive  from  the  charter  of  the 
king  of  England. 


No.   XVI. 

Not  avra  «  king  can  grant  what  ha  doe«  not  powess— The  psopleof  one  continent 
have  no  right  to  dispoe«e8s  the  people  of  another  continent — The  proper  use*  of 
charterg— Claims  of  the  Pope,  and  of  Queen  Eliiabeth— Chartem  of  Georgia- 
Treat/  of  1763  between  England  and  Spain— Proclamation  of  George  the 
Third — True  meaning  of  protection. 

The  next  enquiry  will  relate  to  the  title  conveyed  to  the  first  Euro- 
pean settlers  of  Georgia,  by  the  charter  of  the  British  crown.  There 
are  some  people,  even  in  our  republican  country,  who  appear  to  sup- 
pose that  there  is  wonderful  virtue  in  the  grant  of  a  king.  But  is  it  not 
manifest,  on  the  bare  statement  of  this  subject,  that  not  even  a  king  can 
grant  what  he  does  not  possess  ?  And  how  is  it  possible,  that  he  should 
possess  vast  tracts  of  country,  which  neither  he,  nor  any  European,  had 
ever  seen  ;  but  which  were  in  fact  inhabited  by  numerous  independent 
nations,  of  whose  character,  rights,  or  even  existence,  be  knew  noth^ 
ing.  Many  grants  to  American  colonists  were  bounded  by  lines  run- 
ning west  from  the  Atlantic  to  the  Pacific  ocean.  This  was  particu- 
larly the  case  with  the  charters  of  Georgia.  Will  it  be  seriously  con- 
tended, that  a  royal  grant  of  this  kind  conferred  any  rightful  authority 
to  dispossess  of  their  territory  the  original  occupants  of  the  soil  ?  From 
such  a  principle  it  would  follow,  that  all  the  aboriginal  inhabitants 
might  be  lawfully  driven  into  the  ocean,  and  literally  and  utterly  exter- 
minated at  once  ;  for  the  European  powers,  by  their  proclamations  and 
8 


f" 


fi8 

charten,  divided  the  whole  American  continent  among  thcmselrea. 
But  who  will  dare  to  advocate  the  monstroua  doctrine,  that  tlie  people 
of  a  whole  continent  may  be  destroyed,  for  the  benofit  of  the  people  of 
another  continent  ? 

It  is  very  easy  to  understand,  that  Eni^land,  France,  and  Spain,  would 
find  it  convenient  to  agree  upon  certain  boundarira  among  themselves, 
80  that  the  subjects  of  one  European  power  mi^ht  not  come  into  colli- 
sion with  the  tiubjects  of  another.  All  this  was  wise  and  proper;  and 
when  it  was  accomplished,  one  of  these  powers  miglit  properly  grant 
unoccupied  lands  to  its  subjects  ;  not  encroaching,  however,  upon  the 
original  rights  of  tlie  natives,  or  the  conventional  rights  of  Europeans. 
For  these  two  purposes,  viz  :  The  prevention  of  strife  between  new 
■ettlera,  and  the  establinhment  of  colonies  upon  territory  not  claimed, 
or  the  claims  to  which  had  been,  or  might  be  amicably  extinguished — 
the  charters  of  European  governments  were  extremely  valuable.  Fur- 
ther than  this  they  could  nut  go  ;  and  the  idea  that  they  could  divest 
strangers  of  their  rights  is  utterly  preposterous. 

It  is  true  that  the  Pope,  immediately  after  the  discovery  of  America, 
issued  a  bull,  by  which  the  kings  of  Spain  were  authorized  to  conquer 
and  subdue  all  the  inhabitants  of  the  new  world,  and  bring  them  into 
the  pale  of  the  Catholic  church.  About  a  hundred  years  afterwards, 
Queen  Elizabeth,  much  in  the  spirit  of  popery,  issued  a  proclamation, 
by  which  she  directed  her  subjects  to  subdue  the  Pagans  of  this  conti- 
nent. But  the  people  of  Georgia  will  not  build  upon  either  of  these 
foundations.  None  of  the  Protestant  colonists  professed  to  act  upon 
such  principles  ;  and  the  first  settlers  from  England,  as  a  general  thing, 
if  not  universally,  obtained  of  the  natives,  by  treaty,  the  privilege  of 
commencing  their  settleitients.  Whenever  they  afterwards  got  posses- 
sion of  lands  by  conquest,  they  did  so  in  consequence  of  what  they  con- 
sidered to  be  unprovoked  wars,  to  which  the  Indians  were  instigated, 
either  by  their  own  fears  and  jealousies,  or  by  the  intrigues  of  European 
nations.  It  is  undeniable,  that  the  English  colonists,  as  a  body,  and  for 
a  hundred  and  fifly  years,  disavowed,  in  principle  and  practice,  the  doc- 
trine that  the  aborigines  might  be  driven  from  their  lands  because  they 
were  an  uncivilized  people,  or  because  the  whites  were  more  powerful 
than  they.  I  have  not  been  able  to  find  an  assembly  of  legislators,  an- 
terior to  December  1827,  laying  down  the  broad  principle,  that,  in  this 
ease,  power  becomes  nght ;  a  memorable  declaration,  which  was  made 
by  the  legislature  of  Georgia,  in  one  of  the  paroxysms  of  the  present 
controversy. 

Let  it  be  fixed  in  the  mind,  then,  that  the  charters  of  British  kings, 
however  expressed,  or  whatever  might  seem  to  be  implied  in  them,  could 
not  divest  the  Indians  of  their  rights. 

The  charters  of  Georgia  ara  cited  in  the  famous  case  of  Fletcher  vs. 
Peck,  (6  Crancb,  p.  87,)  and  it  may  be  presumed,  that  all  the  parts  which 
have  a  bearing  on  (his  investigation,  are  there  copied.  The  first  charter 
.  was  granted  by  Charles  the  Second,  one  hundred  and  sixty  tliree  years 
ago,  and  embraced  all  that  part  of  North  America  which  lies  between 
S9  and  36^  degrees  of  north  latitude ;  that  is,  a  tract  of  country  more 
than  five  hundred  English  miles  broad,  extending  from  the  Atlantic 
ocean  to  the  Pacific.    It  granted  the  territory,  "  together  with  all  port8» 


..■^wWtif.^  MtammmamtraM^a^fr^i 


■mpa 


sng  thcmseltref. 
that  tlie  people 
of  the  people  of 

nd  Spain,  would 
nong  themselvei, 

come  into  colli- 
md  proper;  and 
lit  properly  grant 
)weveri  upon  tho 
ts  of  Europeans, 
ifo  between  new 
Lory  not  claimed, 
y  extinguished — 

valuable.  Fur- 
hey  could  divest 

lety  of  America, 
>rizbd  to  conquer 
bring  them  into 
rears  afterwards, 
1  a  proclamation, 
ans  of  this  conti- 
m  either  of  these 
ssod  to  act  upon 
9  a  general  thing, 
,  the  privilege  of 
vards  got  posses- 
of  what  they  con- 
3  were  instigated, 
;ues  of  European 
IS  a  body,  and  for 
practice,  the  doc- 
nds  because  they 
e  more  powerful 
of  legislators,  an- 
;iple,  that,  in  this 
I  which  was  made 
ns  of  the  present 

of  British  kings, 
led  in  them,  could 

36  of  Fletcher  vs. 

lU  the  parts  which 

The  first  charter 

sixty  three  years 

lich  lies  between 
of  country  more 

from  the  Atlantic 

tber  witb  all  port8» 


harbors,  bs'  s  rivers,  soil,  land,  fields,  woods,  lakes,  and  other  righU  aid 
privileges  therein  named."  So  far  as  appears,  the  charter  said  nothmg 
of  the  native  inhabitants.  Whether  it  sdiil  any  thing  in  regard  to  them, 
or  not,  ia  immaterial  to  the  case  now  in  hand  :  for  as  k  nave  already 
observed,  nn  man  will  undertake  to  maintain  the  proposition,  that  the 
unknown  tribes  and  nations  between  the  Atlantic  and  the  Mississippi, 
and  thence  westward  to  Mexico  and  the  Pacific,  could  have  their  righte 
and  properly  justly  taken  from  them  by  the  signature  of  the  British  king, 
in  his  palace  of  Whitehall.  .     «  •.•  u 

The  rights  derived  from  this  charter  were  surrendered  to  the  British 
crown  in  the  year  1729.  Tliree  years  afterwards,  George  the  Second 
incorporated  James  Oglethorpe  and  others,  as  a  charitable  society, 
which  he  styled  "  The  Trustees  for  establishing  the  Colony  of  Georgia, 
in  America,  with  perpetual  succession."  To  this  corporation  he  grant- 
ed all  lands  lying  between  the  rivers  Savannah  and  Altamaha,  and  be- 
tween parallel  lines,  drawn  westward  to  the  Pacific,  from  the  heads  of 
said  rivers  respectively,  "  with  all  the  soils,  grounds,  havens,  bays, 
mines,  minerals,  woods,  rivers,  waters,  fishings,  jurisdictions,  franchises, 
privileges,  and  preeminences,  within  the  said  territories." 

In  the  year  J  752,  this  charter  also  was  surrendered  to  the  crown.  A 
royal  government  was  instituted  in  1764,  over  the  colony  of  Georgia, 
which  was  bounded  in  the  same  manner  as  the  tract  granted  to  the  cor- 
poration above  described.  This  tract  embraced  all  the  northern  part 
of  the  present  states  of  Georgia,  Alabama,  and  Mississippi,  and  extend- 
ed westward  to  the  South  Seas,  as  the  Pacific  Ocean  was  then  called. 

By  the  peace  of  1763,  it  was  agreed  between  England  and  Spain, 
that  the  Mississippi  should  be  the  western  boundary  of  the  British  col- 
onies The  same  year  a  proclamation  was  issued  by  George  the  Third, 
which,  among  other  things,  annexed  to  the  colony  of  Georgia,  what  w 
BOW  the  BoutbefB  part  of  the  states  of  Georgia,  Alabama,  and  Missii- 

nppi. 

The  same  proclamation  contains  the  following  passage : 

M  That  it  ii  onr  royal  will  and  pleaiure  for  th*  pruent,  bs  afore»aid,  to  rejierT* 
under  our  iovereigBty,  protection,  and  dominion,  for  the  use  of  the  •aid  Indiane, 
aU  the  land  and  territoriee  not  included  within  the  limiU  of  our  eaid  three  new  go- 
vemmenti,  or  within  the  limit,  of  the  territory  granted  to  the  Hudjon  •  Bay  Com- 
VEnr,  at  aUo  all  the  land  and  territontt  lying  to  the  westward  ofthetoureei  o/int 
Wwr«,  whUh  fall  into  the  tea  from  the  vett  and  northxeett  at  a/orMoirf ;  and  we  do 
hereby  itrictly  forbid,  on  p»in  of  our  di»p]ea«ure,  all  our  loving  eubjccU  from  ma- 
kinir  tnv  purchwee  or  eetilemcnU  whatever,  or  taking  posieBwon  of  any  of  the 
lands  above  rewirved,  without  our  special  leave  and  license  for  that  purpose  first 
obtained." 

The  lands  now  in  dispute  between  Georgia  and  the  Cherokees  era 
within  the  description,  which  is  printed  in  italics  ;  and  were  therefore 
reserved  ''for  the  uie  of  the  Indiam."  Thus  matters  remained,  so  far 
as  the  British  government  was  concerned,  till  the  close  of  tlie  revolu- 
tionary war.  By  the  peace  of  1703,  the  colony  of  Georgia  was  ac- 
knowledged to  le  one  of  the  independent  states  of  America.  There 
can  be  no  doubt,  that  the  state  of  Georgia  thenceforward  might  exer- 
cise,  within  her  proper  limits,  all  that  authority,  in  regard  to  the  In- 
dians, or  any  other  subject,  which  either  the  colony  of  Georgia,  or  the 


k" 


II.       !'■ 


60 

Britith  goTernaitnt  might  h*fe  rightAiUy  exercised  within  the  wme 
limit!.  It  is  to  be  undentood,  however,  that  any  modifications  of  her 
power,  which  Georgia  afterwards  made,  either  by  entering  into  the  old 
confederation,  or  by  adopting  the  present  national  constitution,  are  to 
be  duly  regarded. 

There  are  no  means  within  my  reach,  by  which  the  claims  of  the 
British  government,  in  regard  to  the  possessions  of  the  Indians,  can  be 
accurately  known.  Nor  is  it  of  any  consequence  that  they  should  be 
known.  Unless  they  were  founded  in  reason  and  justice,  they  could  be 
of  no  validity  ;  and  in  regard  to  what  i»  founded  in  reason  and  justice, 
impartial,  disinterested,  intelligent  men  of  the  present  day,  can  form  as 
correct  an  opinion,  as  could  Im  formed  by  the  kings  of  £ngland. 

It  is  admitted  on  all  hands,  and  is  even  sirenuously  contenfled  for 
by  the  people  of  Georgia,  that  the  Indians  wore  considered  by  the 
British  crown,  as  under  its  protection.     From  this  claim  of  the  crown, 
it  is  inferred,  that  the  Indians  held  their  lands  by  permitsion  of  the 
crown.     Now  I  humbly  co'^'^eive,  that  here  is  too  large  a  leap  from 
th«  piKmises  to  the  conch.jion.     There  is  a  distinction  between  afford- 
ing protection  and  usurping  unlimited  control  over  rights  and  property. 
How  manv  small  states  remained  for  hundreds  of  years  under  the  pro- 
tection of' the  Roman  Republic  ?    The  greatest  men  in  that  republic 
were  always  proud  of  their  good  faith  to  their  dependent  allies,  so  long 
M  these  allies  remained  faithful.    The  right  of  retaining  their  territory, 
laws,  customs,  and  habits  of  living  was  not  invaded.     How  many  small 
states  are  there  in  Europe,  at  this  moment,  possessing  a  limited  sove- 
reignty, and  remaining  under  the  protection  of  larger  states,  yet  exer- 
cising the  right  of  administering  their  own  government,  in  regard  to 
many  essential  things,  as  truly  as  the  state  of  Massschusetts,  or  South 
Carolina,  administers  ita  own  government  ? 

Would  it  not  be  safer  to  infer,  that  the  Indians  were  claimed  to  be 
under  the  protection  of  Great  Britain  because  they  had  important 
rights,  which  needed  protection?  rights  which  were  in  danger  fom 
the  encroachments  of  other  European  nations,  the  avarice  and  ;.aud 
of  speculators,  and  the  hostile  machinations  of  neighbouring  tribes  ?  A 
guardian  is  the  acknowledged  protector  of  his  ward.  Is  it  sound  law, 
therefore,  that  the  guardian  is  the  sole  owner  of  his  ward's  property ; 
and  may  set  the  helpless  orphan  adrift  in  the  world  ?  The  father  is 
the  protector  of  his  children :  may  he,  therefore,  oppress  them,  dis- 
hearten them,  and  thus  prepare  them  to  become  outcasts  and  vaga- 
bonds ?  A  husband  is  the  protector  of  his  wife :  may  he,  therefore, 
abuse  her,  repudiate  her  without  cause,  and  drive  her  from  her  own 
bouse  and  her  patrimonial  inheritance  ? 

The  people  of  the  United  States  may  conclude,  therefore,  without 
the  least  danger  of  mistake,  that  the  rights  of  the  Cherokees  and  Creeks 
were  not  taken  from  them  by  a  royal  proclamation.  The  thing  is  im- 
possible in  itself ;  and  the  proclamation  does  not  assert,  nor  imply,  that 
the  righto  of  the  Indiana  were  to  be  disregarded. 


m 


thin  the  s»tne 
ications  of  her 
n^  into  the  old 
titution,  are  to 

claims  of  the 
Indians,  can  be 
they  should  be 
',  they  could  be 
on  and  justice, 
y,  can  form  as 
Ingland. 

contended  for 
sidered  by  the 
n  of  the  crown, 
rmitnon  of  the 
^e  a  leap  from 
between  afford- 
s  and  property. 

under  the  pro- 
n  that  republic 
It  allies,  so  long 
I  their  territory, 
low  many  small 
a  limited  sove- 
tates,  yet  excr- 
it,  in  regard  to 
uaetts,  or  South 

e  claimed  to  be 
had  important 
in  danger  f'om 
arice  and  ;.aud 
iring  tribes  ?  A 
Is  it  sound  law, 
vard's  property ; 
?  The  father  is 
press  them,  dis- 
tcasts  and  vaga- 
ly  he,  therefore, 
r  from  her  own 

lerefore,  without 
kees  and  Creeks 
The  thing  is  im- 
t,  nor  imply,  that 


No.  xvir. 

ControTcniei  about  unappropriated  landi — Indian  title  alwayi  reapected— Firit 
inlercourae  of  Ogletliorpe  with  Indiani,  1733 — Treaty  of  Havannah — Abitract 
of  it — Ratified  in  London — Treaties  writtrn  by  the  Engliah — Viait  and  wpeech  of 
Tomochichi — Reply  of  George  II. — Treaty  with  the  governor  of  St.  Auguitiue. 

At  the  close  of  the  revolutionary  war,  great  controversies  arose,  in 
regard  to  the  disposal  which  should  bo  made  of  the  unappropriated 
landv  lying  within  the  limits  of  the  United  States,  as  defined  by  the 
treaty  of  1783.  Lands  were  considered  as  unappropriated,  if  they  had 
not  been  parcelled  out  to  the  whites.  If  Indians  were  in  possession, 
and  living  on  amicable  terms  with  their  white  neighbours,  it  was  taken 
for  granted  that  the  Indian  title  must  be  lawfully  extinguished,  before 
the  whites  could  be  justified  in  taking  possession  ;  and  such  an  extin- 
guishment of  Indian  title  could  bo  obtained  by  the  consent  of  the  ori- 
ginal owners,  but  in  no  other  way. 

Some  of  the  States  contended,  that  the  vast  tracts  lying  to  the  west 
and  northwest  of  the  portion  inhabited  by  whites,  should  be  made  a 
common  fund,  and  held  for  the  common  benefit ;  as  the  whole  had  been 
secured  by  the  common  privations  and  sacrifices.  Other  States  were 
determined  to  retain  all  the  territory,  which  fell  within  the  limits  de- 
scribed in  their  original  charters.  It  is  not  my  intention  to  enter  at  all 
into  a  dispute  whi:h  was  put  at  rest,  as  a  practical  matter,  by  various 
conventional  arrangements,  made  between  particular  States  and  the 
United  States,  from  1781  to  1802.  My  object,  in  adverting  to  the  sub- 
ject here,  is,  that  the  reader  may  be  aware  of  the  existence  of  such  a 
controveray.  Virginia  set  an  example  of  public  spirit,  by  relinquishing 
U>  the  United  States  her  claim  to  the  vast  tract  northwest  of  the  river 
Ohio  ;  and  i*  was  contended  that  Georgia  ought  to  relinquish  all  claim 
to  the  lands  on  lier  western  waters.  These  relinquishments,  actual  or 
contemplated,  were  not  considered  as  affecting,  or  as  likely  to  affect, 
the  Indian  title.  Every  cession  was  subject  to  this  title.  In  other 
words,  every  party  was  considered  as  bound  to  deal  justly  with  the  In- 
dians, and  to  recognise  their  territorial  rights. 

On  the  supposition  that  Georgia  had,  at  the  conclusion  of  the  Ameri- 
can war,  an  unquestionable  right,  on  every  ground  of  law  and  honour, 
to  all  the  land  within  the  limiu  of  the  king's  charter,  nUgect  only  to 
the  Indian  titk,  it  would  remain  to  inquire  whether  her  jurisdiction 
could  be  fairly  and  properly  extended  over  the  original  inhabitants,  or 
their  country.  To  me,  it  seems  perfectly  clear,  that  Georgia  could 
have  claimed  no  jurisdiction  at  all  over  the  Creeks  or  Cherokees,  or  over 
their  territory.  They  were,  respectively,  a  separate  people,  living  under 
their  own  laws,  upon  their  own  soil.  No  argument,  but  that  of  force, 
could  have  been  adduced,  in  favour  o'  taking  away  their  possessions  ; 
and,  if  they  had  been  able  to  defend  themselves,  no  argument  would 
ever  have  been  thought  of.  Could  the  Cherokees  now  bring  into  the 
field  a  formidable  array  of  bayonets,  all  these  arguments  about  the  hun- 
ter state,  would  be  suffered  to  reoose  in  quiet,  with  other  lumber  of  the 
•chools.     The  more  savage  the  Indians  were,  the  less  inclined  the  peo- 


62 

p)e  of  Oeorgii  would  b«  to  hiv«  a  quarrel  with  them  ;  and  the  inor« 
readily  would  all  their  territorial  and  national  righu  be  acknowledged. 

The  claims  of  Georjyia,  which  ore  let  forth  n«  beiiiR  tupporltd  by  tiie 
law  of  nations  and  the  king's  charter,  have  been  examined  ;  and,  unlet* 
I  am  mistaken,  have  been  shown  to  be  ultoRcther  groundless  ;  especially 
when  compared  with  the  strong  title  of  immemorial  possession.  But 
there  is  no  need  of  resting  the  case  here,  however  safe  it  would  be  here 

I  therefore  proceed  to  show,  that  Georgia  has,  during  her  whole  his- 
tory, till  within  a  very  few  years,  admitted  the  national  chararrer  and 
territorial  righU  of  the  Creeks  and  Cherokees  ;  and  that  she  is  bound, 
by  numerous  public  acta  performed  by  her,  in  the  very  capacity  of 
which  she  is  most  proud  and  jealous,  (that  of  a  sovereign  and  indepen- 
dent  State,)  for  ever  to  admit  and  respect  the  rights  of  the  Cherokeea, 
unless  these  righU  shall  hereafter  be  voluntarily  surrendered. 

In  the  year  1733,  Jumcs  Oglethorpe  commenced  a  seltkment  on  the 
site  where  Savannah  now  stands.  In  his  first  letter  to  the  corporation, 
whose  agent  he  was,  dated  February  10th,  ho  says:  "  A  little  Indian 
nation,  the  only  one  within  fifty  miles,  is  not  only  in  amity,  but  desiroua 
to  be  subjects  to  his  majesty  King  Gecge,  to  have  lands  given  them 
among  us,  and  to  breed  their  child.,  n  at  our  schools.  Fhoir  chief  and 
his  beloved  man,  who  is  the  second  man  m  the  nation,  desire  to  l)e  in- 
ttructed  in  the  Christian  religion."  It  appears  from  M'Call  s  History 
of  Georgia,  (on  which  1  shall  rely  as  authority  for  several  succeeding 
•tatementfl,-)  that  this  litile  tribe  of  Indians,  which  is  now  extinct,  miist 
have  received  a  splendid  account  of  the  power  and  benevolence  of  the 
British  king.  How  much  they  understood  of  what  was  implied  m  be- 
coming  his  subjects,  cannot  be  known.  They  were  doubUess  inforn^ ed, 
that  the  settlers  were  intending  to  live  in  a  compact  manner,  and  \o 
have  schools  and  preaching  ;  and  that  the  Indiana  would  act  wisely,  if 
they  would  be  friends  to  the  English,  and  live  in  the  same  manner. 
They  might  naturally,  therefore,  have  been  pleased  with  the  notioc  o 
Uking  farms  for  cultivation,  side  by  side,  with  the  new  settlers.  This 
must  have  been  the  meaning  of  their  having  landt  given  them  among 
the  settlers,  for  the  old  English  doctrine  of  tann  in  fee,  and  of  the  fee 
being  in  the  king,  was  too  metaphysical  an  idea  to  have  found  a  lodg- 
ment in  their  unsophisUcated  heads.  Indeed,  it  is  quite  ridiculous,  to 
embarrass  this  question  with  the  abstract  terms,  and  nice  distinctions, 
which  had  their  origia  in  the  feudal  tenures  of  Europe.  The  whole 
philosophy,  and  the  whole  morality  of  the  Indian  Utle,  as  opposed  to  the 
encroachments  of  the  European  setUe«,  might  be  thus  expressed  by  th« 
Indiana :  "  These  lands  are  our..  We  had  them  from  our  father.. 
,  They  are  not  your..  Neither  you,  nor  ?«"'  J<^«"' "'^^y*;"  J,'"** 
ever  had  them.  When  we  consent  to  your  taking  them,  they  wiU  be 
your..     Till  then,  they  belong  to  us."  _•        f  .u^  u„^.  .t 

If  the  little  tribe  of  Indians,  who  had  the  possewion  of  *«  »"Jl«  ** 
the  mouth  of  Savannah  River,  consented  to  the  settlement  ojOff^orpe, 
and  if  their  consen*  vaa  obtained  fairly  and  honourably,  (which  I  am 
Sot  inclined  to  que.  .on.)  then  the  founder  of  the  State  of  Georgia  had 
a  rightful  posMssion.     The  lawfulness  of  hi.  po««»8ion.  a.  againat  the 


nd  the  mor* 
nowledged. 
porltd  by  the 
;  and,  unlet* 
n ;  eipeciullj 
leuion.  But 
rould  be  here 

er  whole  hii- 
harartsr  and 
the  is  bound, 
r  capacity  of 
and  inde|)en* 
le  Cherokeeit 
!d. 

Icment  on  the 
I  corporation! 
.  little  Indian 
,  but  desiroui 
)  given  them 
loir  chief  and 
gire  to  )>e  in- 
:all'8  History 
il  succeeding 
extinct,  must 
olence  of  tha 
mplied  in  be- 
ess  inforri  ed, 
anner,  and  U> 
act  wisely,  if 
lame  manner, 
the  notion  o' 
ettlers.  Thi» 
them  omong 
ind  of  the  fit 
found  a'lodg- 
ridiculous,  to 
)  distinctions, 
,  The  whole 
ipposed  to  the 
pressed  by  the 
1  our  father!. 
>r  your  kingi 
I,  they  will  bt 

r  the  Itndf  at 
)f  Oglethorpe, 
(which  I  am 
'  Georgia  had 
la  against  the 


Indiana,  was  founded  alto|7fther  upon  their  consent :  while,  in  regard  to 
thd  whiles  of  South  <^'!irolina,  ho  might  justly  pinad  the  king's  charter. 

"  But  ns  iW\*  tribe  w.nii  incon^i'lcrable,"  suy^t  tlio  historian,  "  Ugle- 
thorp"  jii'lifcd  it  expcilient  to  have  the  otlirr  tribes  also,  to  join  with 
them  in  the  treaty,"  S<»,  it  secna,  that  Uj^lethor|ic  supptxcd  the  In- 
dims  to  be  capable  of  tnakiii|i;  a  (maty,  an  nil  the  rnrly  settlers  had 
done,  from  the  dijtcovcry  of  America  to  tint  day,  anil  an  all  his  succes- 
sors continued  to  do,  till  tliio  sanic  Gcor]2ia  controversy  has,  within  two 
years  pa^t,  led  to  the  discovery,  that  Indians  are  fwit  capable  of  being 
treated  with.  It  ia  morally  certain,  that  the  colony  of  O^riethorpe  would 
have  been  of  short  duration,  if  he  had  told  the  Indians,  that  li^,  acting 
under  thfi'king  of  (Jreat  Britain,  was  the  owner  of  oil  the  lands  fnim 
Savannaii  to  the  Altamaha,  and  thence  westward  to  the  other  side  of 
the  world  ;  and  that  he  could  not  form  any  compact  with  them,  because 
they  were  incapable  of  making  a  bargain.  Had  the  whites  distinctly 
avowed  such  principles  of  morality  and  law,  they  would  never  have  et- 
tablished  themselves  on  this  contiiKint  beyond  the  reach  of  their  ^uns. 
No  other  refutation  of  so  monstrous  a  sy.otem  seems  ncrt  igary,  than  ita 
utter  impracticability,  at  the  commencement  of  the  settlements.  In 
other  words,  the  emigrants  from  Europe  could  never  have  become 
strong  enough  to  throw  off  all  the  restraints  of  justice,  and  disavow  itie 
most  obvious  principles  of  moral  honesty,  unless  they  had  benri,  or  at 
least,  had  pretended  to  be,  honest  and  just  during  a  period  of  two  hun- 
dred years. 

Oglethorpe,  having  found  an  interpreter  summoned  a  meeting  of  the 
cbien  to  hold  a  congress  with  him  at  Savannah,  in  order  to  obtain 
"  their  consent  to  the  peaceable  sen  Icment  of  the  colony."  About  iif\y 
chiefs  assembled.  Oglethorpe  represented  to  them  "  th«  great  power, 
wisdom,  and  wealth  of  the  English  nation,  and  the  many  advantagee 
that  would  accrue  to  the  Indians  in  general,  from  a  connexion  and 
friendship  with  them  ;  and,  as  they  had  plenty  of  lands,  he  hoped  they 
vxnild  freely  resign  a  share  of  them  to  his  people,  who  were  come  to 
settle  among  them  for  their  benefit  and  instruction." 

This  is  the  first  overture  of  the  colonists  to  the  assembled  Indians  ; 
and  it  certainly  does  not  look  much  like  demanding  the  whole  country, 
in  the  name  of  the  king  of  England.  It  seems  more  like  a  humble 
intreaty  for  permission  to  remain,  which  permission  was  solicited  for 
the  purpose  of  doing  good  to  the  natives.  The  consent  of  the  lords  of 
the  soil  was  obtained,  and  a  treaty  was  made,  of  which  the  following 
is  an  abstract  : 

TREATY  OF  SAVANNAh. 

The  preamble  recites  the  authority  of  Oglethorpe,  and  layi  that  certain  "  Arti< 
clee  of  friendship  and  commerce"  were  made  between  him  "and  the  chief  men 
of  the  nation  of  the  Lower  Creeki,"  vii. 

1 .  The  colony  engagei  to  let  traders  carry  goods  into  the  "  Creek  nation"  for  sale. 

%  The  colony  engages  to  make  restitution  to  ihe  Creeks  for  any  injury  which 
shall  be  done  to  them  by  white  traders,  and  to  punifch  the  offender*  according  to 
English  law. 

3.  If  the  Creeks  should  not  treat  the  traders  well,  the  colony  will  withdraw  the 
English  trade. 

4.  The  Creeks  say,  that  they  are  glad  the  English  have  come,  and  add  these 
memorable  words  :  "  Tiiough  thit  land  belonit  to  ut,  (the  Lower  Creeks,)  yet  we, 
that  we  may  be  instructed  by  them,  (the  Englisb,)  do  eoiuent  and  agree*  that  they 


*  I 


6i 

■ball  m»k.  UM  of.  and  pomM.  ati  tho..  Iwd*  «AwA  wr  na/wn  Aa/^  f '  *''f" ^ 
St- ™  Provided  .Iw.yV^  thai  th.,.  upon  .«lU.n,  •""/"•J  ♦°*"' 'f  •"  *•' :"a 
f*,  rA«  UH  ofownWa,  and  the  p,opU  ./our  naUon,  -ucl.  Und.  ..  "h*"  »>•  •It"'^ 
«pon  belwMn  .h.ir  beloved  m.n,  and  the  head  m.n  of  our  ntl.on  i  and  Ihal  thu* 

''f  it' crrir.';;r/;:rto  do  .„y  miury  to .«,  of  th.  tr.d.r. ..  but  .f  .„t.  m. 

d,.n»  thould  tr»nn[ro«i  tl.ii  article,  the  nation  will  dol.ver  them  up.  to  be  punuh- 

•d  Mcordinij  to  Engliih  law.      ....  .»,„„ 

n   Thm  Creeke  airree  to  apprehend  and  reatore  runaway  nejroee. 

?:  Thl  Cnlil  to'give  no  encouragement  to  white  ^.ttler.  from  other  Europeaa 

"Ti"heiule  of  pricee  of  article.,  oichanffed  for  peltry,  wa.  al»  agreed  upon. 
This  treaty  was  ratified  by  tho  corporation,  in  the  city  of  London, 

October  10,  1733.  .    ,     ,.         ,  .         .  :     .k;. 

So  far  aa  apnea™,  ORlethorpe  was  entirely  fair  and  honest  in  Ihta 
whole  transaction.  Tho  Indians  confided  in  all  his  statements,  and  both 
parties  doubtless  supposed  that  the  colony  would  conduce  to  tho  per- 
manent advantage  of  tho  Indians,  and  that  they  and  the  ucttlera  would 
live  together  in  friendship,  accordin«  to  the  im()ort  ot  the  preceding 
articles.  The  corporation,  in  ratifyintj  the  treaty,  declare  that  they 
are  •  greatly  desirous  to  maintain  an  inviolable  peace  to  the  world  fl 

*"lt  is  to  bo  remembered,  that  all  treaties  with  tho  Indians  were  written 
by  the  English,  and  that  there  is  no  probability  that  they  made  the  ex- 
pressions stronger  against  themselves,  than  they  actually  were.  Yet 
here  is  a  firm  and  decided  protestation  of  the  Creeks,  Ihot  the  grants 
which  they  made  out  of  friendship,  should  never  bo  construed  as  an  ad- 
mission thai  they  had  no  original  title.  They  also  took  care  to  provide 
that  no  new  settlement  should  be  made  without  their  consent.  If  the 
colony  intended  to  rely  upon  the  right  of  tho  English  king,  here  was 
tho  time  and  place  to  have  asserted  it,  and  to  have  obtained,  if  possible, 
the  acknowledgment  of  it  from  the  Indians.  ,     . .  ,       ,.   ,  ^ 

The  principal  speaker  in  this  council  was  a  Creek  chief,  called  lo- 
mochichi.  When  Oglethorpe  returned  to  England,  in  the  spring  of 
1734,  this  chief  was  induced  to  accompany  him.  On  being  introduced 
to  King  George,  he  made  a  flourishing  spfsech,  in  which,  however,  he 
does  not  admit  that  the  king  of  England  is  his  liege  lord  and  sovereign. 
He  gave  the  king  some  eagles'  feathers,  "  as  a  token  of  everla8l..ig 
peace ;"  and  concluded  by  saying,  "  Whatever  words  you  shall  say 
unto  liie,  I  will  faithfully  tell  them  to  all  tho  kings  of  the  Creek  na- 
tion." This  is  all  the  allegiance  he  promised.  Kmg  George  expressed 
his  kind  regards,  gave  thanks  for  the  eagles'  feathers,  and  concluded  by 
savins,  »  I  shall  always  be  ready  to  culuvate  a  good  correspondence 
betw^  the  Creeks  and  my  sukject, ;  and  shall  be  glad  on  any  occasion 
to  show  you  marks  of  my  particular  friendship.* 

Here  is  no  arrogant  claim  of  sovereignty,  on  the  ground  of  the  divine 
right  of  kings,  or  any  other  factitious  title.  Indeed,  the  king  of  Eng- 
land implicitly  says,  that  the  Creeks  are  nothiatdyectt. 

When  the  old  chief  Tomochichi  died,  m  1739,  he  charged  his  people 
to  remember  the  kindness  of  the  king  of  England,  and  hoped  they 
would  always  be  friendly  to  his  subjecte  ;  thua  making  the  very  disUnc- 
tion  which  the  king  himself  had  made.  ....     a       •  u  r:^„«^ 

in  the  year  1736,  Oglethorpe  made  a  treaty  with  the  Spanwh  Gov«^ 


!K  net  sttatisn 
1,  ihftll  Mt  out 
htll  b«  tgrecd 
;  and  thai  Ihut 

;  but  if  »n J  In« 
I,  to  bt  punish  • 


thtr  European 

igTMd  upon, 
y  of  London, 

oneRt  in  this 
ints,  and  botb 
:e  to  tho  per- 
cttlera  would 
the  preceding 
ire  that  they 
}  the  world's 

!  were  written 
made  the  ex- 
y  were.  Yet 
lat  tho  grants 
ued  as  an  ad- 
ire  to  provide 
iscnt.  If  the 
ing,  here  was 
id,  if  possible, 

ef,  called  To- 
the  spring  of 
ng  introduced 
I,  however,  he 
ind  Bovereicm. 
of  everlasting 
you  shall  say 
the  Creek  na- 
>rge  expressed 
concluded  hy 
orrespondence 
1  any  occasion 

d  of  the  divine 
king  of  Eng- 

ged  his  people 
nd  hoped  they 
e  very  distinc- 

Spanish  Gover- 


nor of  St.  Augustine,  in  which  the  second  article  r«ad«  as  follovrs  : 
"  In  respect  to  the  nations  of  free  Indians,  colled  Creeks,  I  will  use  my 
utmost  ainicnbie  cndeavorn.  upon  any  reasonable  satisfaction  given  them, 
to  prevail  with  them  to  abstain  from  any  hostilities  whatsoever,  with  tho 
subjects  of  his  Cotholic  majesty." 

Hero  it  is  evident  that  Oglethorpe  saw,  as  no  man  in  his  circumstan- 
ces could  htlp  seeing,  that  the  Creeks  were  an  inilepcndent  people  ;  and 
that  they  mutt  decide  for  themselves,  whether  they  would  goto  war  with 
the  king  of  Spain,  or  not.  Ho  would  odviso  them,  however,  to  accept 
of  reasonable  satisfaction. 


No.  XVHI. 

Sseond  treaty  of  Osorgia  with  the  Indians,  1738— Assertion  of  right  by  the  Creeks 
— Stipulalioni  of  Oglethorpe  in  favour  of  the  Creeks — Claims  of  Bosomworth 
War  with  Virginia  and  other  colonies— Engaijemonti  of  the  king's  agent- 
Treaty  of  AugUHta,  or  fourth  compact  of  Georgia,  1703 — Cessions  of  land  in 
1773 — Treaty  of  Uunt's  corner,  1777— Second  treaty  of  Augusta,  or  sixth  com- 
pact, 1783--ObjecU  of  these  treaties— PosUcript. 

As  Oforgia  is  so  strenuous  an  advocate  for  State  Rights,  and  protests 
io  stron{  ly  ai;ainst  any  interferonco  on  tho  part  of  tho  general  govern- 
ment, thv)  inquiry  how  far  she  has  herself  acknowledged  the  national 
character  of  the  Creeks  and  Cherokces  becomes  peculiarly  interesting. 

In  1738,  Oglethorpe  renewed  tho  treaty  of  friendship  and  alliance, 
of  which  an  abstract  was  given  in  rny  last  number.  The  next  year  ha 
took  a  journey  into  the  wilderness,  four  hundred  miles,  as  the  distance 
was  then  computed,  having  been  previously  invited  thither  by  the 
Creeks  of  the  Coweta  towns.  There  he  was  received  with  the  greatest 
kindness,  and  had  the  opportunity  of  conferring  with  deputies  of  the 
Creeks,  Chickasaws,  and  Chorokees.  On  the  7th  of  August,  another 
treaty  was  made  between  him  and  "  the  assembled  estates  of  all  the 
Lower  Creek  nation."     This  may  bo  called 

THE  SECOND  TREATY  OF  GEORGIA  WITH  THE  INDIANS. 

The  instrument  begins  by  enumerating  the  towns  and  tribes  of  the 
Creeks  which  were  represented  in  the  council.  Tho  Indians  then  de- 
clared, without  a  dissenting  voice,  that  they  adhered  to  their  ancient 
love  to  the  King  of  Great  Britain.  They  next  declared,  that  all  the  ter- 
ritory from  tho  Savannah  to  the  St.  John's,  with  the  intermediate 
islands,  and  from  the  St.  John's  to  the  bay  of  Appalache,  and  thence  to 
the  mountains,  "  doth,  by  ancient  right,  belong  to  the  Creek  nation,  who 
have  maintained  possession  of  said  right  against  all  opposers,  by  war, 
and  can  show  the  heaps  of  bones  of  their  enemies,  slain  by  them  in  de- 
fence of  the  said  lands."  They  further  declared,  that  they  were  under  the 
protection  of  the  king  of  England,  and  would  not  suffer  the  Spaniards, 
or  any  other  nation  but  the  English,  to  settle  upon  the  territory.  They 
acknowledged  that  they  had  granted  to  the  corporation  for  which  Ogle- 
thorpe acted  '  the  lands  from  the  Savannah  to  the  St.  John's,  &nd  aa  far 
9 


66 

back  from  th«  coast  as  the  li^le  flow.'    But  they  reserved  to  themselves 
three  islands,  and  a  small  district  ««')"''»"«  ^'jy"""''.^-.,,,   ..  „.  take 
Offlelhorpe  engaged,  on  his  part,  that  the  Lnglish  should  "not  take 
any  oZr  lands  elclpt  those  granted  by  the  C««*  "'•'r;\*^«  ^'J^'J^;^ 
tnd  that  he  would  punish  any  person  who  should  .ntrude  beyond  the  h- 
mite      He  issued  I  proclamation  immediately  afterwards,  .n  wh.ch  he 
TavT:  "Know  ye,  that  you  are  not  to  tnke  up  or  settle  any  lands  beyond 
the  above  limits  tettkd  by  me  wUh  the  Creek  """"I?- .  ^„^„„  ..   ..„;„- 
Abou»  the  year  1747,  a  man  by  U»e  name  of  Bosomworth,  hav  ng 
maVried  a  half  Indian  woman,  claimed,  in  her  right,  all  the  lands  m  the 
poss    slon  of  the  colony,  and  artfully  induced  the  Creeks  osuppor 
Sis  claim.     He  greatly  endangered  the  safety  of  f '^J'^"""!'' "J^'^J  "  ,fj 
the  settlements  into  the  greatest  alarm.     It  ,s  n°^/ /    '".^  vers  lad 
he  iuteli^ated  the  Indians  to  assert  that  Oglethorpe  and  »''^f°"°"^"  ' 'J 
beJ^merely  tenants  at  will  of  the  Creeks  from  !>f  ^^^g'^Tg;  J  Ji"^^ 
the  same  phnseolo-iy  to  the  whites,  as  the  legislature  of  ^eo''^!^  J" 
recentTy  applied  to  tho  Cherokeos,  and  with  much  greater  P»a«s'W  ty- 
AThough  Mr.  Stephens,  then  governor  of  Georgia,  did  not  «dmU  ^he 
ell  of  Bosomworth  and  his  wife,  yet  the  f -'VT'lTetendS^  ny 
would  have  idle  and  dangerous  for  the  settlers  to  have  pretend^d  any 
other  ri-ht  to  the  country,  than  that  which  they  hud  acquired  with  the 

%':?o^V760:ad":iructive  war  existed  between  the  Cherokees  ar^ 
the  coSsts  of  Virginia,  the  Carolinas  and  Georgia  O""'^  the^^^^* 
test  many  cruelties  were  perpetrated  on  both  sides.  Tj'^  «°™. 
State^were  unable  to  defend  themselves,  and  applied  lor  aid  to  General 
Amherst,  commander  of  the  British  forces  in  A-enca.  Jrom  ^^^^ 
dispensable  assistance  was  twice  receu'ed.  ^  ^''f  J '«  J^"®  ^'J^;^ 
last  made  between  the  Cherokees  nnd  the  colonies,  the  terms  ol  wbicn 

^  %^n  Sr  the  close  of  this  war,  captain  Steuart,  a  sagacious  and  in- 
teSnt  man,  having  been  much  acquainted  with  ^^-J^Jan  •:ha;^^^^^^^^^ 
was  appointed,  by  the  king,  superintendent  of  Indian  affairs  »<"•«''  tne 
SoTLth  of  Virginia."  He  convened  a  general  congress  orinduns 
SMoSleT  where  he  made  a  long  speech  to  them,  addressing  the  d.ffer- 
«r<t  tribes  in  succession.     At  die  close  of  his  speech,  ho  saiu,— 

•  tt  5.  a  remarkable  fact,  that  Bosomworth  induced  the  Creek  ohieft,  or  rather 
.  fe^Vf\her"\ppoiK  genera,  '^tto  transact  U^e^^^^^^^^^^^^^^ 
then  inveigled  th<«  agent  to  make  a  deed  to  him  LB°«°'»J^°"'^1  ?^^^  ^ucU 

wrved  isl^ds,  and  the  small  tract  near  Savannah.  After  he  *'»^°''*'"'°"*  ,^,  ^^ 
.      UouWe  to  the  colonial  government,  he  went  to  England,  and  commenced^   wt  on 
iLaaUengthof  this  Indian  grant.    The  '^^S-^^^on^^'^^f^^^'^A^Xihi, 
one  of  the  islands  was  adjudged  to  hmi.    He  '«tamed  to  America^  an  .^ 

wife  lived  and  died  on  tho  idl&nd.    From  the  account  "^  t*^*'  !*Y "g;  .j.h  tri- 
given  in  McCall's  History  of  Georgia,  it  would  seem  ^  S°i"§L^anU  to  indi- 
b«nals  not  only  admitted  the  validity  of  Indian  title,  »»"*  of  Ifldiw  pams 
Tiduals.  8ome  time  afterwards,  the  King  of  England  prohibited  his  subJecU  irom 
■taking  purchaMS  of  land  from  Uia  nativM. 


ic_.r^.-  L-  j-£'j*«rWj='^ 


...tt.^iS^iiA^^'— 


m 


d  to  themaelves 

uld  "  not  take 
to  the  trustees," 
e  beyond  the  li- 
•d3,  in  which  he 
ny  lands  beyond 

)mworth,  having 
the  lands  in  the 
■eeks  to  support 
inah,  and  put  all 
itlle  curious,  that 
liis  followers  had 
nning;  applying 
of  Georgia  has 
nter  plausibility, 
id  not  admit  the 
r  evinced  that  it 
ve  pretended  any 
.cquired  with  the 

e  Chcrokees  and 
During  the  con- 
I.  The  southern 
or  aid  to  General 
I,  from  whom  in- 
r  of  peace  was  at 
le  terms  of  which 

sagacious  and  iri- 
Indian  character, 
1  affairs  for  all  the 
longress  of"  Indians 
dressing  the  diflfer- 
ho  said, — 

IB  governors  and  iub- 
lear  all  encrtiachmtnU 
Is  are  prohibited  from 
rhite  brethren  c«nnot 

Jreek  chiefs,  or  rather 
lusineBS  for  them,  and 
orthl  of  the  thrje  re- 
had  occasioned  inucU 
commenced  a  suit  on 
id  twelve  years,  when 
raerica,  and  he  and  his 
his  law-suit,  which  is 
lOugh  the  English  tri- 
■  Indian  grants  to  indi- 
bitod  hii  subjeoto  from 


feed  Tou  when  you  visit  them,  «ni«ii  you  giee  Ikem  gtvundt  to  plant,  it  is  nyttAtd 
that  MU  mill  ttdt  Imdi  to  the  king  for  that  purpose ;  but  whenever  you  shall  be 
plnaaed  to  turrtndcr  any  of  your  lerritonei  to  hit  Majetly,  it  must  bo  done,  for  the 
future,  at  a  public  meeting  of  your  nation,  when  the  governors  of  the  provinces, 
or  the  superintendent,  shall  be  present,  and  obtain  the  eoment  of  all  your  people. 
The  boundaries  of  your  hunting  grounds  will  bo  accurately  fued,  and  no  letlle- 
meiU  permitted  to  be  made  upon  them.  As  you  may  bo  assured  that  oil  treaties  with 
you  will  be  faithfully  kept,  so  it  is  expected  that  you  also  will  be  careful  strictly  to 
observe  them." 

It  is  not  necessary  to  detain  the  reader  with  any  comments  on  these 
declarations  of  the  authorized  representatives  of  the  British  crown  :  only 
let  them  be  compared  with  the  present  claims  of  Georgia. 

TREATY  OF   AUGUSTA;    OR    FOURTH  TREATY    WITH  THE   IN- 
DIANS, IN  WHIG!'  GEORGIA  WAS  A  PARTY. 

A  great  meeting  of  chiefs  of  the  Catawba,  Cherokee,  Choctaw, 
Chickasaw,  and  Creek  nations,  was  convened  at  Augusta,  by  invita- 
tion of  the  colonists,  at  which  wore  present  Gov.  Wright,  of  Georgia, 
Gov.  Boone,  of  South  Carolina,  Gov.  Dobbs,  of  North  Carolma,  Lieut. 
Gov.  Fauquier,  of  Virginia,  and  Capt.  Sleuart,  Superintendent  of  In- 
dian affairs  n  the  southern  department.  A  treaty  was  concluded, 
Nov.  10,  1703,  by  which  a  cession  of  lands  was  made  in  satisfaction 
of  debts,  which  the.  Indians  had  contracted  with  the  English.  The 
Cherokees  and  Creeks  united  in  this  grant,  which,  with  what  had  been 
previously  granted,  embraced  all  the  sea-coast  of  Georgia,  and  so  far 
back  as  to  make  about  one-eighth  part  of  the  State,  as  it  now  appeara 
on  the  map,  or  one-twentieth  part  within  the  limits,  which  were  fixed 
by  the  king  of  England,  for  his  colony  of  Georgia,  after  the  peace  with 
Spain  of  the  sime  year,  and  which  include  Alabama  and  Mississippi. 

Having  given  an  account  of  this  treaty,  the  historian  adds,  "  I  be- 
lieve it  may  be  said  of  Georgia,  that  there  has  been  no  instance  in  which 
lands  have  been  forced  from  the  aborigines  by  conquest ;  and  that,  m 
all  cases,  the  Indians  have  expressed  their  entire  satisfaction  at  the  com- 
pensations which  have  been  given  them  for  acquisitions  of  territory. 
The  history  was  published  in  1811.  ,        .11 

I  most  sincerely  desire  that  the  historian,  who  shall  write  a  hundred 
years  hence,  may  be  enabled  to  say  the  same  thing.  It  can  never  be 
truly  said,  however,  tiiat  Georgia  has  not  repeatedly,  within  a  few  years 
past,  <Arca/«icdto*take  the  lands  of  Indians  by  force,  and  thus  been 
chargeable  with  oi)pressing  them,  by  creating  the  most  serious  alarm 
amonv  them.  .  . 

The  Creek  Indians,  not  being  very  skilful  casuists  in  distinguishing 
between  rights  to  real  and  personal  property,  interpreted  the  treaty  m 
such  a  sense  as  to  give  them  a  right  to  cattle  and  horses,  which  they 
found  straggling  in  the  woods  on  their  lands.  They  fairly  remonstrated 
with  Gov.  Wright,  however,  against  the  whites  permitting  their  stock 
to  stray  over  the  boundaries.  Having  occasion  to  use  some  horses, 
which  were  found  there,  the  Indians  took  several.  A  party  of  the  whites, 
irritated  by  the  loss  of  their  horses,  made  an  irruption  into  the  Creek 
country,  re-took  the  property,  remunerated  themselves  to  their  own 
•atisfaction  for  other  losses,  and  burned  all  the  houses  in  the  towns. 


ts  ■ 


The  chiefs  came  lo  Savannah  and  complained  of  thia  harsh  treatment ; 
the  eovertior  made  them  compensation,  and  peace  was  restored.  Let 
the  reader  decide,  whicli  party  gave  the  most  evidence  of  savage  man- 
ners in  this  transaction,  u  IJ  .  A.. 
In  1773,  a  convention  of  Creeks  and  Cherokees  was  held  at  Au- 
gusta, when  another  tract  of  land  was  coded  to  the  colonists,  m  payment 

of  debts.  ,     ,       .,      p 

When  the  revolutionary  war  b'oke  up,  the  Indians  took  the  side  ot 

the  mother  country.     A  peace  was  concluded  with  the  Cherokees  by 

the  commissioners  of  Georgia,  at  Duet's  Corner,  South  Carolina,  May 

20    1777 

Hostilities  were  afterwards  renewed.  In  May,  1783,  the  Cherokee 
chiefs  were  invited  to  Augusta,  and  six  distinguished  men  were  ap- 
pointed by  Georgia  to  negotiate  with  them.  A  treaty  was  concluded 
on  the  30lh  of  that  month,  establishing  the  boundary  of  the  Chatahoo- 
chy,  which  remained  the  line  of  demarkation  between  Georgia  and  the 
Cherokees  till  long  after  the  treaty-making  power  had  been  given  to  the 
general  government.     It  is  still  the  boundary  in  part. 

This  treaty  was  declared  to  be  made  between  the  state  of  Georgia 
(then,  as  averred  by  that  instrument,  in  the  seventh  year  oftta  md«- 
pendence)  and  "  the  head  men,  warriors,  and  chiefs  of  the  hordes  or 
tribes  of  Cherokee  Indians,  in  6cAa//o/<Ac«aidna<ion. 

The  two  objects  of  the  treaty  were  peace  and  a  definite  boundary, 
both  of  which  were  obtained  on  the  undisputed  basis  of  the  Cherokees 
being  a  "nfl<to»,"  and  having  territorial  rights.  Why  is  not  Georgia 
bound  by  this  treaty,  made  by  herself,  in  the  plenitude  of  her  mde- 
pendence,  signed  by  her  governor,  and  by  the  late  Col.  Few,  who  wa. 
one  of  her  delegates  to  form  the  federal  constitution,  and  by  four  others 
of  her  most  valued  citizens?  Here  can  be  no  pretence  of  encroach, 
ment  on  the  rights  of  Georgia  by  the  national  authoriues  of  the  United 
States.  The  act  is  exclusively  the  act  of  Georgia,  performed  by  her 
own  agents,  and  for  her  own  benefit. 

This  treaty,  being  made  on  the  same  principles  as  the  preceding 
ones,  is  an  implicit  attestation  to  the  validity  of  them  all,  and  should  se- 
cure the  Cherokees  the  peaceable  possession  of  their  country. 

P.  S.  It  will  be  some  weeks,  Messrs  Editors,  before  I  shall  offer 
another  communication  to  your  columns.  With  yous  permission,  I  pro- 
pose, then,  to  examine  the  following  questions : 

How  far  Georgia  is  bound  by  the  acts  of  the  general  government,  in 
pursuance  ofthe  treaty-making  power?  .    rinn9h« 

How  far  the  Cherokees  are  implicated  in  the  compact  ot  IBUZ  ne- 
tween  Georgia  and  the  United  States  ?  ,    l  »     -„  .»,<. 

How  far  Georgia  has  assented  to  treaties  actually  made  between  the 
United  States  and  the  Cherokees  ?  ,       r  •  .=.:««    I 

And,  in  conclusion,  having  considered  the  demands  of  juf«:  » 
shall  briefly  inquire,  whether  a  benevolent  and  upright  man,  with  a  luii 
knowledge  of  the  case,  would  advise  the  Cherokees  to  seU  their  country, 
and  remove  beyond  the  Mississippi  ? 

/fat.  InttU.  Oel  14, 1829. 


«9 


«h  treatment ; 
■estored.  Let 
f  savage  man* 

I  held  at  Au- 
its,  in  payment 

ok  the  Bide  of 

Cherokees  by 

Carolina,  May 

the  Cherokee 
men  were  ap- 
was  concluded 
'the  Chatahoo- 
ieorgia  and  the 
een  given  to  the 

itate  of  Georgia 
\fear  ofitt  indx- 
>f  the  hordes  or 

finite  boundary, 

if  the  Cherokees 

is  not  Georgia 

ide  of  her  inde- 

I.  Few,  who  was 
id  by  four  others 
ce  of  encroach- 
ies  of  the  United 
)erformed  by  her 

IS  the  preceding 

II,  and  should  se- 
)untry. 

ifore  I  shall  offer 
Dermission,  I  pro- 

il  government,  in 

npactof  1802be- 

made  between  the 

inds  of  justice,  I 

It  man,  with  a  full 

sell  their  country, 


No.  XIX. 

Statement  of  important  poiitioni  on  thii  .ubjoot-Olher  troatlw  with  Oeorgia- 
TreXmaS  power  of  the  general  government-Aro   he  InUlan.  "P»ble  of 
maSTtreaty  ?-Aro  engagement,  with  them  to  he  called  «*«««««/.  .'-The 
SupreL  Court^annot  pronounce  a  treaty  \-^^-\^S^ '^^iLT. 
—Whether  the  national  government  can  rede  the  territory  ol  a  State. 

In  the  posucript  to  my  last  number,  I  proposed  to  suspend  my  com- 
munications  for  some  weeks,  announcinK.  at  the  san.o  tune,  severs  to- 
pics,  which  remained  to  be  discussed.  This  annuncmt.oii.  sooms  not  to 
C  been  sufficiently  explicit.  I  must  bo  permitted,  therefore,  o 
state,  in  the  use  of  different  phraseology,  the  pomts,  which  ought  s  11 
to  be  Examined,  before  the  strength  of  the  Cherokee  cause  can  be  justly 

estimated.  .      ,      ,     u     > 

Unless  I  am  mistaken,  it  can  be  clearly  shown,  „„„.„.„,j 

That  the  original  right  of  the  Cherokees,  confirmed  and  guaranteed 

by  so  many  treses,  was  not,  and  could  not  be,  affected  by  the  compact 

of  1802,  between  Georgia  and  the  United  Slates :  .       -  .  „.„♦..„ 

That  Georgia  so  understood  the  matter,  for  a  quarter  of  a  century 

after  the  year  1802,  as  appears  by  numerous  acts  of  hor  legislature  : 

That  the  proposed  plan  for  removing  the  Indians  is  visijnary,and  de- 
rives no  support  from  experience  :  , ,      .  u    „„»ui„^ 
That  the  proposed  guaranty  of  a  now  country  would  not  be  entitled 
to  confidence ;  and  tiiat  the  offer  of  a  guaranty,  in  present  circum- 
stances, would  be  esteemed  by  the  Chorokocs  a  cruel  insult : 

That  the  actual  removal  of  the  southwestern  tribes,  would,  in  all  pro- 
bability, be  followed  by  great  evils  to  them,  without  any  corresponding 
benefit  to  them,  or  to  others ;  and  .         ,        u       i  •  —  .i— 

That  a  conscientious  man  will  bo  very  cautious  how  he  advises  the 
lodions  to  yield  their  unquestionable  rights,  and  to  commit  all  their  inte- 
rests to  the  issue  of  a  mere  theoretical  experiment,  which,  to  say  the 
least,  is  very  likely  to  fail,  and  for  the  failure  of  which  there  can  be  nei- 
ther remedy  nor  indemnity.  .     ,    .  .    .  c 
It  has  appeared,  that  the  colony  of  Georgia,  (with  the  cognizance  of 
the  British  goveinment,)  and  the  State  of  CSoorgm,  in  Jhe  days  of  her 
youthful  independence,  negotiated  with  the  Creeks  and  Cherokees  on 
the  undisputed  basis,  that  these  Indians  wore  nations;  that  they   hod 
territorial  and  personal  rights  ;  that  their  territory  wosin  remain  in  their 
possession,  till  they  should  voluntarily  surrender  it  i  and  thattreaies 
with  them  are  as  truly  binding,  as  treaties  uro  between  any  ««[""»«'»'" 
whatever.     Such  is  the  aspect  of  ail  the  transactions,  m  relation  to  this 
subject ;  and  no  candid  render  of  history  can  avoid  these  conclusions. 
Seven  formal  treaties,  all  possessing  these  gonaral  characloristics,  have 
been  already  mentioned.     The  last  of  them  was  dated  in  the  year  1 783, 
just  fifty  years  from  the  first  sottleiuont  cf  the  oolony.     It  is  probable, 
that,  within  this  period,  many  subordinate  negotiations  were  held. 

The  treaty  of  Galphinton  was  formed  m  the  year  1785,  and  is  not 
unfrequentlv  referred  to.     The  next  year,  a  treaty  of  peace  was  made 


70 

between  Georgia  and  the  Creeks.  I  have  not  been  able  to  find  these 
two  documents,  nor  to  ascertain  the  provisions  which  they  contain. 
Quotations  made  from  them  on  the  floor  of  Congress  by  a  representa- 
tive of  Georgia,  leave  no  room  to  doubt,  that  they  are  of  the  same  gene- 
ral character,  as  the  treaties  which  preceded  tiiem. 

In  1787  tlie  federal  constitution  was  formed,  by  which  the  power  of 
making  treaties  was  conferred  on  tlie  President  and  Senate  of  the  Unit- 
ed States.  As  this  was  a  subject  of  great  importance,  the  framers 
of  the  constitution  not  only  took  care  (Art.  III.  section  2)  to  assign  the 
treaty-making  power  of  the  general  government,  but  to  inhibit  (Art.  I. 
section  10)  the  several  States  from  entering  into  "  any  treaty,  alliance, 
or  confederation."  Since  the  constitution  was  adopted,  no  State  baa 
negotiated  with  Indians.  All  public  measures  respecting  them  have 
fallen  within  the  scope  of  the  powers  vested  in  the  general  govern- 

Ge'orsia,  in  her  character  of  a  sovereign  and  independent  State, 
adopted  the  constitution,  and  thus  became  a  member  of  the  Union. 
She  must  be  bound,  therefore,  by  all  acts  of  the  President  and  Senate, 
which  are  performed  by  virtue  of  powers  conferred  in  the  constitution. 
Very  recently,  some  of  her  public  men  have  asserted,  that  tlie  United 
States  have  neither  the  power  to  make  treaties  with  Indians,  nor  to  cede 
any  part  of  the  territory  of  a  State.  .    ,         . 

The  power  to  make  treaties  with  Indians  is  denied  on  the  ground, 
that  treaties  can  be  made  with  nations  only ;  and  that  communities  of 
Indians  are  not  nations.  Unfortunately  for  this  theory,  it  was  notori- 
ously  invented  to  answer  a  particular  purpose.  It  is  not,  and  cannot  be, 
entitled  to  the  least  degree  of  credit.  Communities  of  Indians  have 
been  called  nations,  in  every  book  of  travels,  geography,  and  history,  in 
which  they  have  been  mentioned  at  all,  from  the  discovery  of  America 
to  the  present  day.  Treaties  have  been  made  with  them,  (uniformly 
under  the  name  of  treaties,)  during  this  whole  period.  The  monarchs 
of  Europe,  and  the  colonies  of  Europeans,  were  perpetually  making 
treaties  with  Indians,  in  the  course  of  the  17th  an!  10th  centuries.  The 
colony  of  Georgia  always  spoke  of  the  Creelt  and  Cherokee  naiioM ; 
and  the  compacts,  which  she  made  with  them,  she  called  treaties.  The 
framers  of  the  constitution  must  be  supposed  to  have  used  language 
in  its  ordinary  acceptation.  When  the  constitution  speaks  of  a  trei^y, 
it  certainly  embraces  every  sort  of  compact,  which  the  universal  voice 
of  mankind  had  designated  by  that  name. 

It  would  seem,  according  to  the  present  doctrine  of  Georgia  politi- 
cians,  that  civihzed  people  may  be  called  nations  and  can  make 
treaties ;  but  uncivilized  people  are  to  be  cnlled  savages,  and  public 

engagements  with  them  are  to  be  denominated what  such  eiigage- 

ments  are  to  be  denominated,  we  are  not  as  yet  informed.  There 
must  be  a  new  code  of  national  law,  and  a  new  set  of  writers  upon  it, 
in  order  to  help  Georgia  out  of  her  present  imagined  difficulties— I 
say  imagined,  because  there  is  no  real  difficulty ;  not  the  slightest. 
What  are  the  distinctive  marks  of  a  civilized  people,  and  who  is  to 
decide  whether  these  marks  are  found  in  a  given  case,  are  matten 
unexplained.     Nor  are  we  told  in    what  respects  treaties   oetween 


T!'  '^S^-'-"^^'-^^^'^  ='^  ^^"''"  ^ '' 


^r^m^^- 


71 


!e  to  find  these 

thoy  contain. 

J  a  representa- 

Ihe  same  gene- 

h  the  power  of 
ito  of  the  Unit- 
s,  the  framers 
)  to  Assign  the 
inhibit  (Art.  I. 
treaty,  alliance, 
I,  no  State  has 
ing  them  have 
'cneral  govem- 

pendent  State, 
cf  the  Union. 
nt  and  Senate, 
he  constitution, 
that  tlie  United 
ms,  nor  to  cede 

on  the  ground, 
communities  of 

it  was  notori- 
,  and  cannot  be, 
>f  Indians  have 
,  and  history,  in 
ek7  of  America 
lem,  (uniformly 

The  monarchs 
etually  making 
centuries.  The 
srokee  nation*; 
\  treaties.  Tlie 
I  used  language 
eaks  of  a  treaty, 
!  universal  voice 

Georgia  politi- 

and  can  make 
ges,  and  public 
It  such  engage- 
formed.     There 

writers  upon  it, 
(d  difficulties — I 
it  the  slightest. 

and  who  is  to 
ise,  are  matters 
reaties  between 


civilized  nations  are  to  be  interpreted  differently  from  public  engage- 
ments with  an  uncivilized  people. 

A  representative   from  Georgia  said  in  his  place  last  wmter,  that 
these  "  agreements  with  the  Indians  had  improperly  been  called  treaties." 
(Let  it  be  borne  in  mind,  that  Georgia  herself  always  called  them  /rw- 
ties.)     In  a  subsequent  part  of  his  speech,  he  spoke  of  tin-  "  bad  faith" 
of  the  Creeks,  in  not  "observing  the  stipulations,  which  tiicy  had  made 
in  these  "  agreements  ;"  and  to  this  alleged  bad  faith,  he  gave  the  ad- 
ditional hard  names  of  "fraud  and  perfidy.''     We  may  gather,  there- 
fore, the  conclusion,  that  savages  are  bound  by  \\iK\t  agreements,  though 
these  agreements  must  not  be  called  treaties.     It  is  contended,  however, 
that  the  United  States  are  not  bound  by  their  agreements  wi«h  the  Che- 
rokees,  because  the  United  States  cannot,  in  their  federal  capacity, 
make  agreemerUs  with  savages,  although  the  general  government  has 
the  exclusive  power  of  making  treaties  with  cicilized  nations :  the  whole 
of  which  philosophy  and  logic,  when  thoroughly  digested  and  concocted, 
amounts  to  this  ;-^that  treaties  l)etween  civilized  nations  buid  both  the 
parties  ;  but  that  agreements  with  savage  tribes,  while  they  bind  the 
savages,  on  the  penalty  of  extermination,  to  observe  every  one  of  their 
engagements,  leave  civilized  parties  to  break  every  one  of  <Aei>  engage- 
ments, or  "  agreements,"  whenever  it  suits  their  pleasure,  or  their  mter- 
est,  to  do  so.     This   is  the  morality  to  be  incorpora'od   into  the  new 
co«le  of  national  law,  with  another  section  declaring,  that  all  parties  to 
an  agreement,  even  though  it  be  called  a  treaty,  have  the  perfect  right 
to  decide  whether  they  are  themselves  civilized,  or  not,  and  whether 
other  parties  are  uncivilized  or  not. 

It  is  by  no  means  favorable  to  this  theory,  that  Washington,  Hamil- 
ton, and  Jefferson  had  the  temerity,  (following  the  uninterrupted  cur- 
rent of  example  and  authority,  which  had  come  down  from  the  discovery 
of  America,)  to  treat  with  Indians  as  nations,  and  to  consider  engage- 
ments with  them  as  being  treaties,  within  the  meaning  of  the  constitu- 
tion. From  the  origin  of  our  general  government  to  the  present  day, 
every  President  of  the  United  States,  not  excepting  the  present  incum- 
bent, baa  used  the  words  treaty  and  nation,  in  precisely  the  same  man- 
ner ;  and  every  Senate  has  confirmed  the  universal  use. 

Besides,  the  President  and  Senate  must  decide,  from  the  nature  of 
the  case,  what  is  a  treaty,  and  what  is  not.     Even  the  Supreme  Court 
cannot  pronounce  a  document  not  to  be  a  treaty,  which  the  President 
and  Senate  have  pronounced  to  be  one  ;  for  the  constitution  expressly 
declares  treaties  to  be  "  the  supreme  law  of  the  land,  and  the  judges, 
in  every  State,  to  be  bound  thereby."     If  treaties  are  the  supreme 
law,  they  cannot  surely  be  pronounced  null  and  void  by  auy  judicial  tri- 
bunal. ...  ,,      -ii. 
Again,  if  the  President  and  Senate  should  be  justly  chargeable  with 
a  mistake,  in  extending  the  treaty-making  power  to  a  subject,  to  wiiv;h 
it  was  not  properly  applicable  ;  and  if  the  Supreme  Court  mighi  de- 
cide, that  a  certain  document,  purporting  to  be  a  treaty,  .s  only  an 
agreement  between  the  President  and  Senate  of  the  United  States  and 
another  party,  although  both  parties   had  long  understood  it  to  be  a 
treaty,  and  had  observed  it  as  such ;— in  such  a  case,  what  would  honor 


^^J".?* 


72 

and  justice  require  ?  Should  the  people  of  the  United  States  takp  ad- 
vantage of  a  blunder  made  by  their  highest  functionaries,  and  long  ac- 
quiesced in  ?  especially  if  the  other  party  had  reposed  entire  confidence 
in  the  validity  of  the  proceeding,  and  had  made  important  sacrifices  m 

fulfilling  his  stipulations  ?  ,   ,     ,,  ■    j  a.  .     u   i  u       u* 

Supp.>se,  for  instance,  that  an  agent  of  the  United  States  had  bought 
ships  ol  Mr.  Girard,  for  public  purposes,  to  the  amount  of  $100,000, 
and  the  contract  had  been  sent  to  the  Senate  and  ratified  as  a  treaty. 
Here  wo-dd  have  been  a  great  blunder,  no  doubt ;  but  is  Mr.  Girard  to 
suffer  by  it  ?     When  he  applies  for  payment,  is  he  to  be  told,  that  the 
contract  'vith  him  has  improperly  been  called  a  treaty  ;  that  the  Presi- 
dent and  Senate  have  no  power  to  make  treaties  on  such  subjects  ;  and 
that,  therefore,  he  cannot  be  paid  for  his  ships  ?     Mr.  Girard  would  be 
not  a  little  amazed  at  this  ;  and  might  naturally  enough  exclaim,  that, 
in  all  his  intercourse  with  mankind,  he  had  never  before  met  with  so 
impudent,  and  so  foolish,  an  attempt  to  cheat.     As  he  grew  cooler,  he 
might  say  :  "  You  have  had  my  ships,  and  sent  them  to  sea.     You  en- 
iraged  to  pay  me  for  them.     If  you  called  the  contract  a  treaty,  the 
name  is  one  of  your  own  choosing.     Nor  had  I  any  thing  to  do  with 
Bending  it  to  the  Senate.     I  sold  my  ships  to  an  authorized  agent  of  the 
government,  and  he  engaged  that  I  should  be  paid  for  them.     If  the 
transaction  is  not  a  treaty,  it  is  at  least  a  fair  bargain ;  and  that  is 
enough  for  me.     I  expect  honest  men,  whether  public  or  private,  wil- 
lingly to  execute  their  bargains  ;  and,  as  to  dishonest  men,  I  shall  do  all 
in  my  power  to  hdd  them  to  their  bargains,  whether  they  are  willing,  or 

not."  ,  <.      .^       .    •  J 

So  the  Cherokees  may  plead,  that  it  was  not  for  them  to  judge,  as  to 
the  extent  of  the  treaty-making  power.  They  made  an  agreement  with 
men,  who  represented  their  Father,  the  President.  They  supposed  the 
President  to  know  the  extent  of  his  own  powers.  At  any  rate,  they  re- 
linquished land,  and  gave  up  many  advantages,  for  the  sake  of  a  solemn 
guaranty  in  return.  If  the  agreement  which  they  made,  was  not  a  trea- 
ty, it  was  an  obligatory  contract ;  and  they  have  a  right  to  expect,  and 
to  demand,  that  the  contract  shall  be  fulfilled.  „  ■    j,  a 

The  politicians  of  Georgia  contend,  that,  even  if  the  United  States 
have  power  to  make  treaties  with  Indians,  still,  they  have  no  power  to 
cede  away  the  territory  of  a  State.  This  objection  cannot  be  support- 
ed, in  any  sense.  But  it  is  plausible  ;  and  the  whole  plausibility  rests 
in  a  mere  sophism.  The  United  States  have  never  ceded,  nor  attempted 
to  cede,  any  part  of  the  territory  of  Georgia.  They  simply  guaranteed 
to  the  Indians  their  original  title  ;  or,  in  other  words,  the  United  States 
solemnly  engaged  to  the  Indiuns.  ihat  no  human  power  should  deprive 
them  of  their  hereditary  posar  s«u,ns,  without  their  own  consent.  This 
was  no  encroachment  upon  hM  rights  of  Georgia  ;  nor  did  it  relate  at 
all  to  the  territory  of  Geor-Tia ;  which  territory  embraced  those  lands 
•  only,  that  had  been  previousfv  obtained  from  the  Indians.  If  the  treaty 
of  Holston  were  an  encroa'-hment  upon  the  rights  of  Georgia,  why  was 
no  complaint  made  at  thcs  time  ?  The  senators  from  Georgia  were  in 
their  seats  ;  and  the  citiz«;a3  cf  Georgia  were  never  charged,  I  believe, 
with  passively  surrendering  tho  »■  <  jghts.  Why,  then,  was  no  complaint 
made  for  more  than  thirty-fiv^  v  ^ara  ? 


■  T^y.y'-zjfflfe  jFt^Stl? 


73 


I  States  tak()  ad- 
es,  and  long  ae« 
ntire  confidence 
ant  sacrifices  in 

lates  had  bought 
ntof  $100,000, 
fied  as  a  treaty, 
is  Mr.  Girard  to 
be  told,  tliat  the 
;  that  the  Presi- 
sh  subjects ;  and 
Girard  would  be 
[fh  exclaim,  that, 
ore  met  with  so 
grew  cooler,  he 

0  sea.  You  en- 
ict  a  treaty,  the 
thing  to  do  with 
ized  agent  of  the 
r  them.  If  the 
fain ;  and  that  is 
;  or  private,  wil- 
len,  1  shall  do  all 
3y  are  willing,  or 

m  to  judge,  as  to 

1  agreement  with 
hey  supposed  the 
any  rate,  they  re- 
sake  of  a  solemn 
B,  was  not  a  trea- 
ht  to  expect,  and 

the  United  States 
lave  no  power  to 
annot  be  support- 
plausibility  rests 
led,  nor  attempted 
limply  guaranteed 
the  United  States 
er  should  deprive 
'n  consent.  This 
lor  did  it  relate  at 
raced  those  lands 
ms.  If  the  treaty 
Georgia,  why  was 
Georgia  were  in 
iharged,  I  believe, 
was  no  coniplaint 


But  It  18  perfectly  clear,  that  the  United  States  may  cede  the  terntory 
of  any  State  in  the  Union  by  treaty.     Such  an  event  may  be  very  impro- 
bable ;  I  care  not  if  you  say  it  is  morally  impossible,  that  the  President 
and  Senate  should  ever  cedo  any  part  of  what  is  really,  and  truly,  the 
territory  of  a  State.     Yet,  if  such  an  event  should  take  place,  the  trans- 
action would  not  be  void  for  want  of  constitutional  power.     The  gene- 
ral government  has  the  power  to  make  treaties  without  limitation.     Of 
course,  treaties  may  be  made  by  the  United  States,  on  all  subjects 
which  are  frequently  found  in  treaties  of  other  nations.     But  there  is 
scare*  ly  a  more  common  subject  of  treaties,  in  every  part  of  the  world, 
than      cession  of  territory.     How  are  foreign  nations  to  know  the  ex- 
tent o.f  our  treaty-making  power  ?     If  our  President,  and  two-thirds  of 
our  Senators,  will  cede  any  part  of  our  territory,  there  is  no  help  for  it. 
Our  security  lies,  not  in  their  want  of  power  to  do  this  ;  but  in  their 
want  of  inclination. 

If  the  United  States  had  ceded  to  England,  all  that  part  of  the  State 
of  Maine,  which  was  in  possession  of  the  British  forces  at  the  close  of 
the  last  war,  how  can  it  be  pretended  that  the  treaty  would  not  be  bind- 
ing '  Indeed,  at  this  very  moment,  (here  is  a  dispute  about  the  boun- 
daries of  Maine.  If  the  king  of  the  Netherlands  should  egregiously 
mistake,  in  deciding  the  question  now  referred  to  him,  which  I  admit  to 
be  very  improbable  ;— still,  if  be  should  mistake,  the  State  of  Mame 
will  lose  7,000,000  acres  of  land  ;  and  all  this  will  bo  lost  by  the  ope- 
ration of  the  treaty  of  Ghent. 

Proud  nations  have  often  been  mortified,  by  being  obliged  to  cede 
some  part  of  their  territory.  It  is  not  probable  that  our  mortifications 
will  come  from  that  quarter.  We  have,  however,  not  a  few  permanent 
causes  of  severe  mortification.  If  it  should  be  said,  five  hundred  years 
hence,  that  in  the  middle  of  the  nineteenth  century  the  United  States 
were  compelled,  by  an  overwhelming  force,  to  cede  Staten  Island  to  a 
foreign  power,  the  fact  would  not  be  a  thousanth  part  so  disgraceful,  as 
to  ha'jj  it  truly  said,  that  the  United  States  adopted  from  Georgia,  the 
maxim,  that  power  is  right  ;*  and,  in  pursuance  of  that  maxim,  de- 
spoiled  an  unoffending  and  sufiering  people,  of  those  very  possessions, 

which  WE  HAD  SOLEMNLV  OUABANTEED  TO  THEM  FOBEVBB. 


No.  XX. 


Controversy  re»pecting  unappropriated  l«jd»— Compact  of  ISOt— The  United 
State*  charged  with  a  failure  to  execute  the  compact— The  Indians  not  bound 
by  a  compact  between  third  parties— Disappointed  expectations  of  Georgia— 
The  word  peaceably  as  much  binding  upon  Georgia,  as  upon  the  United  SUtei 
—The  public  measures  of  Georgia,  till  lately,  in  accordance  with  the  compact- 
Proclamation  of  Governor  Troup— His  opinion  of  the  sacrednesa  of  treatiei. 

From  the  preceding  investigation,  it  is  manifest,  that  the  Cberokees 
can  plead  against  the  claims  of  Georgia,  not  only  that  best  of  all  titles, 

•  The  legislature  of  Georgia  adopted  this  maxim,  in  nearly  these  words,  ta  I 
shall  show  m  a  quoUtion  from  a  report,  approved  by  that  body,  in  D«c«mb«r, 
1847. 


immwnorial  occupancy,  fortified  as  it  »  by  the  solemn  guaranty  of  the 
TnuS^Scates.  in  which  guaranty  the  fa.th  of  Georgia  >«  pledged  with 
that  of  every  other  State  in  the  Union;  but  they  can  plead,  alao,  the  re- 
Mated  and  solemn  acts  of  Georgia  herself,  as  an  indeF-endent  State,-- 
kcts,  which  stand  forth  as  most  convincing  proof,  that  the  national  cha- 
racter  of  the  Indians  was  «cknowle<iged  by  that  State,  and  the.r  rights 
of  territory  regarded  as  indisputable. 

It  is  contended,  however,  that  the  United  States  are  bound  <o  extin- 
euuh  the  Indian  tUU  to  all  lands,  which  are  now  claimed  as  belonging 
to  Georgia.     This  obligation  is  supposed  to  be  derived  from  the  com- 

'^In  one  of  mv  previous  numbers  it  was  mentioned,  that  a  controversy 
existed,  nt  the  close  of  the  revolutionary  war,  in  regard  to  the  question, 
whether  the  United  States  in  their  federative  capacity,  or  the  several 
State,,  in  their  independent  character,  had  the  most  equitable  churn  to 
iands,  which  had  never  been  settled  by  whites,  and  which  lay  within  the 
chartered  limiU  of  the  States  respectively.     This  claim,  as  preferreu  by 
either  party,  was  merelv  the  right  of  purchasing  lands  of  the  Indians,  t<> 
the  exclusion  of  all  other  purchasers  except  the  claimants,  with  the  right 
of  jurisdiction  over  the  territory,  after  it  should  hate  been  thus  pur- 
chased      If,  however,  there  were  any  lands,  which  had  never  come  mto 
the  actual  possession  of  whites,  and  which  did  not  belong  to  any  nation 
of  Indians,  such  lands  would  be,  in  the  strictest  sense,  unappropriated, 
and  the  possession  of  them  and  jurisdiction  over  them  might  properly 
be  assumed  without  delay,  by  the  United  States,  or  the  several  States, 
accordingly  as  the  claim  should  be  settled  between  these  parties. 

I  have  nothing  to  say  of  the  merX ,  of  this  controversy.  As  between 
the  United  States  and  Georgia,  it  was  settled  by  the  compact  of  1802, 
which  I  will  now  describe.  ...  r 

James  Madison,  Albert  Gallatin,  and  Lev.  Lincoln,  commissioners  of 
the  United  States,  and  James  Jackson,  Abraham  Baldwin,  and  John 
Milledjre,  commissioners  of  Georgia,  executed  "a  deed  of  articles  and 
mutual  PHiion,"  April  24,  1802,  of  which  the  following  provisions  are 
all  that  ttie  material  to  the  present  inquiry. 

The  State  of  Georgia  ccdos  to  the  United  States  »  all  the  right,  title,  and  claim, 
Jch  the  laid  .tatch^w  to  the  juriBdiction  and  soil  of  the  land.,"  which  now  ap- 
near  on  the  map  a»  the  States  of  Alabama  and  MissisBippi.  ,,     ..      ,  „,„ 

'^ThBUnfted  States  engaire  to  pay  Georgia  ^1,250,000,  from  the  first  net  pro- 
ceedaoysa^  landt»af  aconsi'de?atio.afor  L  expense,  incurred  by  the  «ud 

Bute,  in  relation  to  the  said  territory."  ,      ,  - 

"The  United  States  .hall,  at  their  own  "pense,  exUngui.h,  for  the  u.e  ol 
Oeorgit  a.  early  as  the  same  can  be  peaceably  obtained,  «>} '«»f°°*''tf  ^1,^^ 
ueor|{i>,  u        /  of  Talassec."  &c.  &c.  "  and  the  United  htates  sUall,  in 

Krm^'e  malt  ;Kt!ng^^;r^^^^  tiUe  to  aU  the  other  land,  within  the 

^*5i'*h«°U?Ue?State.  cedes  to  Georgia  "  whatever  claim,  right,  or  title,  they  may 
•        hJe  to  tSetStlon  or  .oil  of  an?  land.,"  which  are  within  the  chart      d  ,.«- 
ili  of  Georgia,  and  east  of  the  present  line  between  Alabama  and  Georgia. 

The  ercat  outlines  of  this  compact  are,  . .  .  ,.      u  j  u^.k 

1    The  parties  agree  upon  a  division  of  claims,  which  they  had  both 

made  to  the  same  lands.  *    ,  4U„  „„;„. 

f .  The  United  States  give  Georgia  a  sum  of  money,  not  as  the  price 


Ifuaranty  of  the 
is  pledged  with 
ad,  also,  the  re- 
endcnt  State, — 
le  national  cha- 
and  their  rights 

bound  to  extin- 
ed  as  belonging 
]  from  the  com- 

nt  a  controversy 
to  the  question, 
I,  or  the  several 
juitable  claim  to^ 
:h  lay  within  the 
,  as  preferred  by 
jf  the  Indians,  to 
Its,  with  the  right 
e  been  thus  pur- 
never  come  into 
ing  to  any  nation 
,  unappropriated, 
Ti  might  properly 
he  several  States, 
•se  parties. 
rsy.     As  between 
compact  of  1 802, 

commissioners  of 
aldwin,  and  John 
ed  of  articles  and 
ing  provisions  are 


•ight,  title,  and  claim, 
nd«,"  which  now  ap- 

■om  the  first  net  pro- 
incurred  by  the  said 

juiih,  for  the  Uie  of 
reasonable  terma,  the 
nited  States  shall,  in 
)ther  lands  within  the 

ght,  or  title,  they  may 
iin  the  chartered  lim- 
1,  and  Georgia. 


irhicb  they  had  both 
ley,  not  as  the  price 


mA 


of  lands,  nor  as  the  price  of  claims  to  land,  bnt  "as  a  con^deralionfor 
tc  onS  of'te  U,La  Sta....     B„.  if  Georgia  can  co„.,c  ou   n. 

h im  ou  of  his  house,  and  drive  him  from  his  farm,  merely  because  he 
5"usedtoseU  ht  poLessions.  Such  an  -lrni"i.trat.on  of  law  wo^  d 
not  be  much  admired,  except  perhaps  m  the  court  of  Ahab  and  Jeze- 

^'^Nor  would  it  alter  the  case,  if  A.  and  B.,  at  the  time  of  making  the 
colTJCl^cla  thatC.wouldsenhisfarm    at  the  fi;«tre^^^^^^^^^ 
offer.     There  might  be  strong  mdications,  that  C-  ^°7j,*;®'J'."'*f„„, 
intemnerate  man!  a  spendthrift,  a  sot,  a  vagrant,  and  that  his  tarn 
wouTd'  JeedirpaBS  int'o  other  hands :  and  yet  fse  md.cat.ons  m,gh 
prove  fkllac-tons.     C.  might  become  a  thnfty  h"Bbandman,  keep  h.s 
farm  clear  of  debt,  and  leave  it  unincumbered  to  his  heirs.     And  is  t^e 
to  be  blamed,  because  he  turned  out  to  be  anindustnous  man,  «^d 
thus  disappointed  the  unfavourable  prognosticaticns  of  B.,  who  stooa 

%'lo?;riyttJrr'^^^  state,  ^uld  ha.e  long 


^    \l 


•ince  eiUnguJshed  the  title  to  all  the  India  n  landi,  which  iho  claims. 
Very  well.  What  if  she  did  ?  The  hiator  of  every  man,  and  of  every 
communis  '•.  .  (  '  diaappointcd  cxpcdalion*.  In  the  aprinjr  of 
1818,  tht!  planters  vfKieoTgu  cspQcted  to  get  thirty  cnnta  ii  pound  for 
cotton,  in  many  subsequent  yeais  ,  and  they  made  their  purchasos  of 
Und  and  slaves  in  that  expectation  ;  but  they  are  now  glad  to  gel  ten 
cenU  a  pound.  This  disiip|iointment  is  a  hundred  times  more  felt  by 
each  man  individunlly,  than  the  failure  to  got  lawful  possession  of  a  tract 
of  indifferent  land,  in  the  remotest  corner  ot   he  state. 

The  terms  of  the  compact  between  t^o  United  States  and  Oeorgi* 
Mve  the  rights  of  the  Indians,  and  were  manifestly  intended  to  save 
tlieni.  But  if  the  United  States  had  agreed  to  take/omW«  possessjon 
of  tbR  Indian  country,  and  to  put  Georgia  in  possession,  such  an  "«[««* 
ment  would  be  absolutely  void,  for  several  reasons.  First,  it  would  be 
palpably  and  monstrously  unjust.  Socoiidly,  it  would  be  in  opposition 
to  previously  existing  treaties,  between  the  United  States  and  the  Indmns, 
which  treaties  were  the  supreme  law  of  the  hind.  Thirdly,  it  Mould  be 
in  opposition  to  treaties  between  Geonin  ai.d  the  Indians,— treaties 
never  abrogated  nor  annulled,— and  therefore  Georgia  could  noi   r^ist 

upon  its  execution.  ,„     ,   ,    ,        ,       .u- 

There  is  not  a  more  established  maxim  <4  English  law  than  this ; 
via.  that  unlawful  contracts  are  not  binding.  If,  for  instance,  A. 
covenants  with  B.  in  consideration  of  a  thousand  dollars,  that  he  will 
compel  C,  by  threats,  duress,  or  false  imprison uient,  to  sign  a  deed  of 
land  ;  and  B.  should  undertake  to  enforce  the  covenant  in  a  court  of 
justice,  it  is  profmble  that  both  the  parties  would  find  themselves  in  a 
penitentiary,  muvn  sooner  than  in  possession  of  C.'s  land. 

It  is  clear,  then,  that  the  United  States  could  not  '  ;  bound,  by  the 
compact  of  1802,  however  that  instrument  mitrht  be  understood  or 
construed,  to  do  more  than  purchase  the  lands  of  the  Cherokees,  within 
the  prescribed  limits,  whenever  the  rightful  owners  should  be  willing 

to  sell.  -    ,  X   I-  J 

But  tluB  is  not  all.  A  fair  interpretaUon  of  the  compact  binat 
Georgia  to  the  same  course  of  proceeding,  which  had  previously  been 
pursued,  w  the  acquisition  of  Indian  lands.  This  course  was  per- 
fectly well  »jiOwn  to  both  parties.  It  was  always  througl  lie  medium 
of  the  treaty-making  power.  .  i    »     r 

The  compact  says,  that  the  United  States  shall  cjttngvish  the  In- 
dian title.  The  Indians  had  a  title,  it  would  seem  ;  and  a  title  of  such 
a  kind,  as  wou  1  require  the  agency  of  the  United  i^tates  before  it 
could^be  extinguished.  It  would  not  expire  of  itself;  it  would  not 
vanish  before  Uie  march  of  civilization  ;  but  the  immense  power  of  the 
general  government  must  be  brought  to  bear  upon  it.  Even  this  power 
might  fcil ;  and  hence  the  pro\  ^^ion,  that  the  United  States  should  not 
be  bound  to  do  what  was  impossible,  or  unreasonable.  At  that  time, 
it  would  doubtless  have  been  thougi  t  moralK  mpossible  for  our  general 
government  to  break  plain,  positive  treaties  or  to  take  forcible  po»- 
sewion  of  lands  in  tlie  peaceable  occupancy  of  Indians,  even  though 
Umm  lands  were  not  protected  by  treaty.  The  tiUe  was  to  be  exUn- 
Buuhed  peaceaMv,  and  on  rfxuonaiU  t^rmt.  The  law  of  the  sirongeat 
was  not  to  be  relied  on.     All  the  parties  were  to  sustain  the  character 


l\i 


t4 


lich  iho  claims, 
an,  and  of  cverjr 
1  the  spring;  of 
cntR  It  pounil  for 
Bir  purchajiPS  of 
V  glad  to  |{(-t  ten 
n\c8  more  felt  by 
lieieion  of  a  tract 

ttes  and  Georgia 
intended  to  save 
DfcibU  poMCSiJon 
n,  such  an  agree- 
First,  it  would  b« 
I  be  in  opposition 
<$  and  the  Indiana, 
irdly,  it  would  be 
Indians,— treatiet 
n  could  not  \r%nt 

li  law  than  this  ; 

for  instance,  A. 
liars,  that  he  will 
to  sign  a  deed  of 
lant  in  a  court  of 
d  themselves  in  a 
and. 

bound,  by  the 
lie  umli  rstood  or 
Cherokees,  within 

should  be  willing 

e  compact  lindt 

d  previously  been 

course  was  per- 

rougi     !ie  medium 

extinguish  the  In- 
and  a  title  of  such 
i  States  before  it 
elf;  u  would  not 
lense  power  of  the 
Even  this  power 
]  States  should  not 
le.  At  that  time, 
ble  for  our  general 
take  forcible  pos- 
lians,  even  though 
was  to  be  extin- 
iw  o?"the  stronge** 
itain  the  character 


of  retsonaMe  beinjfs.  There  was  to  be  a  consent  of  terms,  a  union  of 
minds,  nnd  not  an  appeal  to  the  «wonl.  This  part  of  the  compact  >-  it 
truly  obligatory,  as  any  other  part ;  and  as  truly  obligatory  upon  Gtur- 
gia,  as  upon  the  Lnited  States. 

It  wai  stipulated  by  the  commissioners,  that  the  compact  shouUl  be 
binding,  if  the  assent  of  the  legislature  of  Georgia  should  be  given 
within  six  months  from  the  date  ;  provided,  that  Congress  should  not, 
within  the  same  period,  repeal  the  «ct,  by  virtue  of  which  the  agree- 
ment  had  been  made.  The  legislature  of  Georgia  assented  to  the  com- 
pact, and  Congress  did  not  repeal  the  act.     The  compact  therefore 

took  (^n6Cti 

The  enacting  clause,  by  which  Georgia  ratified  the  compact,  is  in  the 
the  following  words,  which  ought  to  be  very  diligently  considered  by  the 
leading  men  cf  that  state  :  viz. 

»  Be  il  enaettd  bu  the  ttnate  and  houit  of  reprettnlalivei  of  the  State  of  Georgia, 
in  general  auembly  met,  and  by  the  nlhonly  thereof,  That  the  *»'d  «1««<J;  or  wlic  es 
of  Lreement  and  cowion  be,  and  U.n  same  hereby  ii  and  are  fully,  tybilantiaUy, 
tndemply  ratified  and  confirmed  m  ('/  iltpartt;  and  hereby  ii  and  are  declared 
to  be  hmding  andtoncluiive  on  thetaxd  State,  her  gotemmenlai,d  M/itfn*,/or«'«r. 

Now  let  it  be  rcmemberoti,  that  the  eUio  of  Georgia,  fully  aware 
that  tho  treaty-making  power  was  vested  exclusively  in  the  general 
government ;  knowing  in  what  manner  that  power  had  been  ex.  rcised 
for  thirteen  years;  that  no  lesa  than  eight  treaties  had  previously  been 
made  by  the  general  government  with  Indian  nations,  residing  within 
the  chartered  limits  of  Georgia  ;  that  most  of  these  treaties  contained 
cessions  of  land,  and  established  boundaries  of  tcrriloi> ,  with  aoleinn 
guaranties;  that  there  was  no  way  of  extinguishing  the  Imii.  i  title, 
except  by  treaty  ;— tho  legislittii  ofGeorgia,  knowing  all  thes(  lunga, 
solemnly  ratified  tiic  compact,  i  a.^cordance  with  which  tlte  ntled 
States  only  could  ixtinguish  t/u  ^ndian  title,  and  this  could  bu  done 
only  in  a  peaceable  manner.  Tiic  coiaj)act  containing  those  prov  isioiis 
was  ratifici,  "  in  all  its  parts;'  and  declared  to  be  binding  on  the 
"  Slate,  her  government  and  citizens- forever  " 

With  what  shadow  of  reason,  then,  can  it  be  pretended,  that  Geor- 
gia has  a  right  to  extinguish  the  Indian  title  herself,  without  waiting 
for  the  interposition  of  the  general  government  ;  or  that  (he  Clierokeea 
»ave  no  title  to  bt  extinguished,  being  merely  tenants  at  will,  or  tcnanW 
by  sufferance  ?  Wheu  the  politicians  of  Georgia  stretch  out  their 
grasping  hands  to  seize  th.  property  of  unoffending  'herok<;es,  let 
this  word /oreucr,  the  closing  v  )rd  of  a  solemn  act  of  legislation,  ring 
in  their  ears,  till  they  shrink  back  from  oppression,  and  betake  them- 
selves to  tuat  course  of  equity,  which  is  prescribed  in  the  compact,  thus 
solemnly  ratified  and  Muctioned.  .     x    y         u         u 

The  public  measures  ofGeorgia,  in  relation  to  the  Indians,  have  all, 
till  recently,  been  conformed  to  the  principle-  of  this  compact  of  1802. 
It  is  not  quite  five  years  since  the  spurious  treaty  of  the  Indian  B|,ring 
was  made;  a  treaty,  liich  the  highest  authorities  of  our  naUon  set 
aside  for  manifest  fra  J.  The  proclamations  and  reasonings  of  the 
Governor  of  Georgia,  in  regard  to  tlio  effect  of  this  treaty,  (on  the  as* 
sumption  that  it  was  valid,;  are,  in  the  main,  correct  and  proper. 


•  '1 
» 


I 
k 


ii 


(! 


I 


78 

The  treaty  wa.  made  February  1«,  1825.  On  the  «2J  of  March  fol- 
lowine.  Governor  Troup  i.Mic.l  a  prorlnrnntion.  wh.ch  commence,  thus  : 
"Where...,  by  a  Irtatv  conchided  «.th  ll.c  Crcvkn,  \.c.  ihe.r  c  uima  lo 
the  wholo  territory  within  th«  liin.ta  of  GcorK.a,  wore  ceded  to  iho 
United  SlHt.-s.  &c.  by  which  act  the  territory  alorc.aid,  nccordmg  to 
the  itiDuiationa  of  the  treaty  and  of  the  article*  of  aurcemcnt  and  cetiion 
of  iK wSon  or  before'.he  first  day  of  Heptember.  1826,  pa«  into 
the  actual  po!«.e«.ionoflheyiale  of  GeorKm:'&c. 

In  tbia  preamble,  aome  of  the  pnnc.pal  doctr.ncn.  for  winch  I  have 
bein  contending,  are  plainly  acknowlcd^  or  unpl.ed  1  he  Unda  are 
Sere  ad.nu.ed  to  have  b.en  ccdrd  to  the  United  States  by  a  tr'ay;.^^ 
it  m  declared  tiiat  thev  will  paas  into  the  actual  po»ses»ton  of  Georgia, 
eighteen  montha  after  the  date  of  the  procluinnt.on  ;  not  bfcnu«o  (.cor- 
2  aa  a  Hovr-reiRn  and  independent  State,  had  a  paramoun  t.tio  to 
them,  nor  because  it  wna  found  written  in  the  laws  of  notions  tj;;'  th«c 
lands  belonged  to  Georgia  ;  but  because  the  stipulation*  of  the  treaty 
and  the  co«/wc<oniiOi»,  so  required.  rpu-  iT«..»,i 

This  is  an  honest  and  accurate  account  of  the  matter.  The  United 
States  had  purchased  lands  of  the  Indians.  '1  heso  lands,  when  pur- 
chased, and  after  the  time  for  the  Creeks  to  ronioyc  from  them  should 
have  arrived,  would  "  pass  into  the  actual  possession  of  Georgia,  for 
this  very  Roo.l  reason  :  viz.  the  United  States  had  covenan  e<l,  that  as 
icon  as  lands,  within  certain  limits,  could  be  peaceably  obtained,  they 
should  bo  thus  obtained,  "/or  <Ac««ce/6Vori'ia. 

In  the  same  proclamation.  Governor  Troup  warns  "  all  persons,  citi- 
zens  of  Georcia  or  others,  against  trespassing,  or  mtruding  upon,  ands 
occupied  by  the  Indians,  within  the  limits  of  this  Statr.  [that  is,  the  lands 
described  in  the  trcaty.l  either  for  the  purpose  of  settlernent,  o^lJ^'-w'^f  • 
as  every  such  act  will  be  in  direct  violation  of  the  provmons  of  the  treaty 
aforesa  d,  and  will  expose  the  ageressors  to  the  most  certain  «nd  summary 
puniskmmthy  the  authorities  of  the  State  and  of  the  United  States. 
^The  treaty  prescribed,  that  the  Creeks  should  remove  before  Septem- 
ber of  the  next  year,  till  which  time  tbey  were  to  retam  "nmolested  pos- 
session  of  their  country.     But  some  of  the  citizens  of  Georgia  might  feel 
inclined  to  take  possession  earlier.     Such  a  measure  the  Governor  warns 
them  against ;  assuring  them,  that  it  would  be  a  direct  riolation  of  the 
treaty,\m\  would  bring  upon  the  trespassers  and  intruders  ccra.n  and 
^mmary  punishment ;  and  this  pur.ishmcnt  would  fall  upon  citizen,  of 
Georgia,  as  well  as  others,  if  they  should  expose  themselves  to  it.   Now, 
as  the  treaty  of  the  Indian  Spring  was  justly  considered  oy  Governor 
Troup  as  ft  sufficient  barrier  to  protect  the  Creeks  m  the  possession  of 
their  country,  till  the  time  fixed  in  thetrcaty  for  their  removal,  why  are 
not  the  treaty  of  Holston.  with  its  solemn  guaranty,  (1791,)  and    he 
first  treaty  of  Tellico,  with  iU  repeated  guaranty,  (1798,)  and  tne 
treaty  of  General  Jackson,  with  its  recognition  of  previous  treatie?., 
f  1817,)— why  are  not  all  these  compacts  a  sufficient  protection  of  the 
Cherokees  "  against  all  persons,"  to  use  the  language  of  the  proclama- 
tion, "  citizens  of  Georgia,  or  others,  trespassing  or  mtrudmg  upon  the 

lands  occupied  by  the  Indians  ?"  .  j  ..  j  ,i,«  ««« 

We  may  safely  gather  from  the  passages  here  quoted,  and  the  one 

which  is  to  foUowrthat  Governor  Troup  found  no  difficulty  m  under- 


!<J  uf  March  ful- 
3mmence»  thus ; 
.  tliiir  cluiina  to 
re  ceded  to  tho 
id,  according  to 
iicnt  and  cession 
,  1826,  past  into 

)r  wliich  I  have 
The  lands  aro 
by  a  treaty ;  and 
lion  of  Georgia, 
ol  bccnuso  Gcor- 
irnmount  title  to 
lotioiiH  th»t  these 
on*  of  the  treaty 

cr.  The  United 
Innds,  when  pur- 
from  them  Bhould 
of  Georgia"  for 
ivenantcd,  that  as 
biy  obtained,  they 

•all  persons,  citi- 
uding  upon,  lands 
.  [that  is,  the  lands 
ncnt,  or  otherwise, 
isiona  of  the  treaty 
rtain  and  summary 
United  States." 
ve  before  Septem- 
in  unmolested  pos- 
Georgia  might  feel 
he  Governor  warns 
ect  violation  of  the 
truders  certain  and 
ill  upon  citizens  of 
iiselves  to  it.   Now, 
Jcred  by  Governor 
m  the  possession  of 
ir  removal,  why  are 
ty,  (1791,)  and  the 
r,  (1798,)  and  the 
f  previous  treatief, 
nt  protection  of  the 
le  of  the  proclama- 
intruding  upon  the 

uoted,  and  the  ona 
difficulty  in  under- 


n 

stnndinff  tli«  tr«*ly  ;  that  its  provisions  were,  in  his  opinion,  to  bo  i!  My 
observed  an<l  that  ample  powers  were  in  tho  possession  of  the  public 
authorities  of  the  Unitnd  Htotes  for  punishing  •'  agurei-sors." 

The  proclamation  continues  thus  ;  *•  All  goo.l  citizens,  therf  Fore, 
pur'.uing  the  dictate*  of  good  faith,  will  unite  in  enforcing  theobLf^atton* 
of  the  treatif  a*  the  tupreme  law,  aiding  and  nssisling,  fi-c.  Arc.  and  all 
officers,  civil  and  military,  are  commanded  to  bo  vigilant  in  proventinu 
offences  under  it,  and  in  detecting  and  punislnmr  oHenders. 

In  tho  principles  hero  assiinjrd  end  enforced  I  heartily  c""''."'-  »  "« 
Governor,  who  issued  his  proclamation,  is  now  a  member  of  the  Senate 
of  tho  United  Htates :  where  ho  will  have  tho  best  opportunity  to  pur- 
»ue  the  dictate*  of  good  faith,  and  to  assert  the  obligation*  of  treatut  a* 
the  aupreme  law.  Most  gladly  shall  1  see  him  engage  m  a  work,  which 
so  well  becomes  a  Senator  of  our  great  republic  ;  and,  should  he  thus 
♦■ngage,  he  may  be  encouraged  with  the  thought,  that  his  efforU  will  not 
t>e  unsuccessful. 


No.  XXI. 


Got.  Troup's  opinion  of  the  effect  of  trcal.es-Sod  and  junidiction  fo  ♦oe/t'"' 
—The  Cherokeci  cannot  be  «ecur«d  in  the  powcwion  of  their  Undi,  it  lliey 
come  under  the  lawi  of  the  Stalen-Hcatoning  of  Mewri.  Campbe.l  and  Meri- 
wether-Select  Committee  of  Congrc»-Law.  of  Georgia-Deci.ions  of  th« 
Supreme  Court— These  deci»ionB  a  dofciico  of  Iho  Cherokee*. 

It  is  at  the  present  moment  a  favorite  doctrine  of  Georgia,  that  the 
right  of  soil  in  the  Indian  -ountry  and  of  sovereignty  over  it,  is  vested 
in  that  State;  and  has  been  thus  vested,  ever  since  tho  peace  of  170 J. 
As  a  consequence  of  this  assumed  right,  the  Senate  of  Georgia  openly 
declared,  in  December,  1827,  that  the  State  might  properly  take  posses- 
sion  of  tho  Cherokee  country  by  force  ;  and  that  it  was  owing  to  her 
moderation  and  forbeara.ico  that  she  did  not  thus  take  possession. 

But  Governor  Troup  appears  to  have  been  of  a  ditrercnt  opinion.    In 
his  letter  to  the  Secretary  of  War,  dated  Juno  .3,  1825,  speaking  of  the 
treaty,  by  which  he  supposed  the  territory  of  tiio  Creeks  had  been  ceded, 
(in  which  supposition  he  would  have  been  correct,  if  the  treaty  had  not 
been  spurious.)  he  says  :  "  By  the  treaty  of  the  Indian  Spring,  the  In- 
dian claims  are  extinguished  forever.     The  article  is  worded  in  the 
present  tense.     On  the  instant  of  ratification,  the  title  and  jurisdiction 
became  absolute  in  Georgia."  ......  i  ^ 

Now  I  humbly  conceive,  that  if  the  title  and  jurisdiction  became  aoaa- 
lute  in  Georgia,  as  a  consequence  of  the  treaty,  the  inference  is  inevita- 
ble,  that  neither  the  title,  nor  the  jurisdiction,  was  absolute  before  that 
event ;  and  if  the  Indian  claim*  were  extinguiahed  by  the  treaty,  there 
must  have  been  claims  in  existence,  previously  to  that  treaty,  capable  oi 
being  extinguished  by  it.  The  Cherokces  are  now  in  the  same  condition, 
as  to  title  and  claims,  as  the  Creeks  were,  before  the  treaty  of  the  In- 
dian Spring  ;  therefore  the  Cherokees  have,  at  the  present  tune,  on  the 
authority  of  Governor  Troup,  claims  yet  to  be  extinguished  by  treaty. 


trac 


E^fl 


80 

Md  neither  the  title,  nor  the  juri«diction,  of  the  Cherokee  ec  .  Ury,  has 
vnt  hecome  absolute  in  Georgia.  .     .-■ 

^  ProcmUne  in  his  argumenit,  as  to  the  effect  ^(  the  treaty,  Oovernor 
TroJp  say    '"Soil  and'jurisd.ction  go  together  ,  and  if  we  have  not  ^e 
tiiht  of  both,  at  this  moment,  we  can  never  h^ye  either  W  better  Ut^ 
if  the  absolute  property,  and  the  absolute  jurisdiction  have  not  passed  to 
us  when  are  thSy  to  come  ?     Will  you  make  a  formal  concession  of  the 
"at'ter  ?     wLn  aid  hov.  ?     If  the  jurisdicUon  be  separated  from  the  pro- 
nertv  show  the  reservation  which  separates  it :  'us  impossible. 
^  The  desTgn  of  this  argument  was  to  prove  U>  the  genera  government, 
that  GeoS  might  properly  survey  the  newi/  acquired  lands  immedi- 
ItelythS  The  Creeks  were  not  obliged  u,  i  .move  till  September 
1826.    The  argument  is  this:  By  the  treaty,  the  right  of. soi  became 
absolute  in  Georgia,  and  the  right  of   urisd.ctiotv  accompanied  the  r.gbt 
S  soit  Serefor'e  Georgia  might  immediately  -««««  ^^^-^  P^,  °  J  '^ 
vevine  the  lands.     Without  giving  any  opinion  as  to  the  conclusivenes. 
of  the  Governor's  reasoning,  it  is  evident,  (and  tor  this  purpose  I  have 
tld  the  passage,)  that  he  considered  the  title  ae  having  passed  by  mean, 
o/!t?re£     Consequently,  the  title,  both  in  respect  to  jurisdiction 
fnTZ,  was  previously  in  the  Creeks,  and  not  in  Georgia;  and.  of 
course  the  title^o  the  Cherokee  country,  both  in  respect  to  soil  and 
iurisdiction,  is  now  in  the  Cherokees,  and  not  in  Georgia. 

i  eitrelv  agree  with  the  Governor,  that  the  soil  and  jurisdiction  go 
toBeSerVh^e  letter  of  the  President  of  the  United  State,  to  the  Che- 
rokees^^  by  which  they  were  assured  that  they  should  retain  possession  of 
£  landl  though  they  should  come  under  the  law-  of  Georgia,  must 
hive  been  founded  altogether  in  mistake.     Where  a  the  power  in  the 
general  government  to  sicure  individual  Cherokees  in  the  po je««.on  of 
Thpr  lands    after  the  Cherokee  community  shall  have  ceased  to  exist, 
and  the  indivlalso? which  it  was  composed  shall  have  come  under  the 
dom  nion  of  four  or  five  different  States  ?  The  Senate  of  Georgia  has  de- 
daTed  that  the  Cherokees.  as  individuals,  will  not  be  suffered  to  retain 
mrethan  a  s  xth  part  of  the  land,  which  is  now  in  the  possession  of  the 
CherokScommSn'^^Jy,  within  the  cliariered  limits  of  Georgia.  And  as  to 
fha  six  h  pThowl'ould  the  President  of  the  United  States  secure  t^ 
individuals  in  the  possession  of  it,  or  guard  against  the  ''ffe^t  of  Sta  J 
Iws.  which  might  be  designed  to  operate  in  such  a  manner,  as  should 
Ineediry  deprTve%he  Indians  of  what  little  property  they  "ow  possess  ? 
'T  he  written  communication  of  Messrs.  Campbell  and  Mf"weth^^^ 
eminent  citizens  of  Georgia,  acting  as  «^o™r^'^"f "  °^J''L^J'r 
States,  and  being  exceedingly  desirous  to  obtain  a  cession  of  the  Che- 
rS.ee  countr^  for  the  use  of  Georgia,  these  negotiators,  in  the  year 
m3    sav  to  the  Cherokee  nation,  "The  sovereignty  of  the  country 
S  Zl  occupy  is  iS  the  United  States  alone.     No  State,  or  foreign 
Lwt.^can  en^^^^^^^       a  treaty  or  compact  with  you.     Tnese  privileges 
■     Save  passed  away  ;  and  your  intercourse  is  restricted  exclusively  to  the 

^  The  dicSne  is  here  plainly  asserted,  that  the  g^eral  gor>ernmmt^s 
could  treat  with  the  Indies;  and  that  separate  States  ««"  ««  "^Jj 
excluded  from  such  an  agency,  as  foreign  «^*7^^^^X^^tS"n 
right  of  treating,  which  the  -ommiseior  e«  call  tocercigntif,  was  noi  an 


J,^  .jL..n^ji,v-!tj^'4-,'yag^&t  'ji^i^Ai0?M^-Ji:hJiikU 


ee  ec  .  itrVj  has 

■eaty,  Governor 
we  have  not  the 
r  by  better  tith. 
ive  not  passed  to 
oncession  of  the 
ed  from  the  pro- 
ossible." 
iral  governmenti 
1(1  lands  inimedi- 
till  September 
;  of  soil  became 
ipanied  the  right 
,he  power  of  sur- 
e  conclusiveness 
is  purpose  I  have 
•passed  hy  meaiw 
X  to  jurisdiction 
ileorgia ;  and,  of 
pect  to  soil  and 
ria. 

id  jurisdiction  go 
tates  to  the  Che- 
tain  possession  of 
9f  Georgia,  mast 
the  power  in  the 
the  possession  of 
5  ceased  to  exist, 
3  come  under  the 
f  Georgia  has  de- 
suffered  to  retain 
possession  of  the 
jorgia.  And  as  to 
I  States  secure  the 
lie  flffect  of  State 
manner,  as  should 
ly  now  possess  ? 
and  Meriwether, 
ers  of  the  United 
jsion  of  the  Che- 
liators,  in  the  year 
ty  of  the  country 
State,  or  foreign 
Tiiese  privileges 
exclusively  to  the 


al  government  only 
cs  were  as  really 
re.  This  exclusive 
cigniy,  was  not  an 


i'm,* 


m 

encroachment  upon  the  natural  rights  of  the  Indiana,  it  being  a  matter  of 
express  and  positive  stipulation  with  them,  perfectly  understood  by 
thein,  and  operating  for  their  protection. 

A  Select  Committee  of  the  House  of  Representatives,  m  a  Report 
made  to  Congress,  March  3,  1827,  cite  a  passage  from  a  letter,  ad- 
dressed, by  the  Senators  and  Representati\e3  in  Congress  from  Geor- 
gia, to  the  Secretary  of  War,  dated  March  10,  1824;  in  which  tho 
writers  are  understood  to  say,  that  the  Cherokees  are  "  to  be  viewed 
as  other  Indians,  as  persons  suffered  to  reside  within  the  territorial 
limits  of  the  United  States,  [that  is,  the  limits  of  the  peace  of  1783,] 
and  subject  to  every  restraint,  which  the  policy  and  power  of  the  general 
government  require  to  be  imposed  on  them,  for  the  interest  of  the  Union, 
the  interest  of  a  particular  State,  and  their  own  preservation." 

Here  it  is  implied,  that  whatever  restraint  is  imposed  upon  the  In- 
dians, must  be  imposed  by  the  general  government,  as  well  when  "  the 
interest  of  a  particular  State"  is  concerned,  as  when  "  the  interest  of 
the  Union"  is  to  be  affected.  This  is  certainly  the  only  rational  con- 
struction, which  can  be  given  to  the  whole  history  of  our  intercourse 
with  the  Indians,  since  the  adoption  of  the  federal  constitution. 

But  there  is  one  more  source  of  evidence  on  this  subject,  which  la 
of  a  still  more  striking  character,  and  which  should  set  the  question  at 
rest,  even  in  the  minds  of  the  people  of  Georgia.  It  is  »,he  constant 
admission,  on  the  part  of  that  State,  in  her  most  solemn  asts  of  legis- 
lation, that  the  Indian  lands  within  her  chartered  limits,  lire  acquired 
for  her  use,  through  the  medium  of  the  treaty-making  pov  ?r,  which  is 
vested  exclusively  in  the  United  States.  This  is  manifest  in  the  very 
titles  of  her  laws,  as  well  as  in  the  enactments. 

The  statute  book  of  Georgia  contains  an  act,  which  was  approved  by 
Gov.  Troup,  June  9,  1825,  of  which  the  following  is  the  title :  viz.- 

»  An  act  to  dispoBe  of  and  distribute  the  lands  lately  acquired  by  the  United 
States  for  the  use  of  Georgia,  of  the  Creek  nation  of  Indians,  by  a  treaty  mads 
and  concluded  at  the  Indian  Spring,  on  tho  12th  of  February,  1825." 

In  the  first  section  it  is  enacted,  "  That  the  territory  acquired  of  the  Creek  na- 
tion  of  Indians,  by  the  Uniteu  States,  for  the  use  of  Georgia,  as  described  in  arti- 
cles  of  a  treaty  entered  into  and  concluded  between  commissioners  on  the  part  of 
the  United  States,  and  tho  chiefs,  head  men,  and  warriors  of  the  Creek  nation  of 
Indians,"  &c. 

This  is  a  perfectly  fair  statement  of  the  case.  If  the  territory  wat 
lately  acquired  of  the  Creek  nation,  it  manifestly  be  nged  to  the  Creek 
nation  before  it  was  thus  acquired  ;  and  if  the  territory  belonged  to  the 
Creeks,  it  was  plainly  under  their  jurisdiction ;  for,  as  Gov.  Troup 
said,  in  his  letter  above  quoted,  which  was  written  only  six  days  before 
signing  this  act,  "  aoU  atd  jurisdiction  go  together."  If  it  was  acquir- 
ed ^  the  United  States,  this  was  done  because,  under  the  federal  con- 
stitution, as  it  has  been  uniformly  administered,  the  United  States  have 
the  exclusive  power  of  extinguishing  Indian  title.  If  it  was  acquired 
fry  a  treaty,  it  was  because  the  Creeks,  being  a  nation,  could  dispose  of 
their  common  properly  by  treaty  only.  If  it  was  acquired  for  the  us* 
of  Georgia,  then  Georgia  had  not  the  use  previously  ;  but  the  United 
States  had  covenanted  with  Georgia,  that  they  tiTould  obtain  this  tiUe 
for  her  use,  as  soon  as  it  could  be  obtained  "  peaceably"  and  "  on  rea- 
sonable terms." 

11  . 


Abundant  evidence  might  be  adduced  to  prove  that  Georgia,  til  after 
tbifperiod,  always  admitted  the  exclusive  power  of ''•^'l"!'!"?  »««  J": 
dian  territory  to  be  ve8ted  in  the  United  States.  But  ndd.t»ona  proof 
Ts  .mnecessary.  The  n.an  who  will  not  be  convinced  by  the  cuations 
already  made,  must  be  beyond  the  reach  of  conviction. 

It  hL  been  said,  that  the  Supreme  Court  of  the  U.med  States  haa 
declared  the  juriHiction  of  the  Indian  country  to  be  in  Georgia.  But 
the  decision  of  the  Court,  in  the  only  two  cases  which  I  have  seen 
QUO  ed  on  Jhis  subject,  does  not  touch  the  question  of  jurisdiction,  or 
Sresent  title ;  except  Ihat  the  Court  throws  out  some  expressions,  which 
were  maS  tly  intended  for  the  protection  of  the  Indians  in  their  right 
of  occupancy  f  that  is,  their  right  of  possessing  their  own  country,  to 
the  exclusion  of  the  whites,  without  limitation  of  time. 

The  Court  decided,  in  the  case  of  Fletcher  and  Peck,  that  the  con- 
tingent interest  of  Georgia  in  the  Indian  territory  was  of  such  a  nature, 
that  it  might  be  granted  to  individuals,  and  might  not  improperly  be 
desg2  by  thf  technical  phrase  of  mm  m /.e ;  though  this  con- 
tSnt  interest  was  subject  to  the  Indian  title  of  occupancy.  «l.,ch 
M"!io  was  certainly  to  be  respected  by  all  courts,  until  it  should  have 
been  legitimately  extinguished.'     6  Cranch,  14i2.  ■ ,   .  „„.    .u.* 

In  the  case  of  Johnson  and   Mcintosh,  the  point  decided  was.  that 
ffrants  of  land,  by  Indian  chiefs  to  individuals  among  the  whites,    can- 
fottesuSd 'by  the  courts  of  this  country.     Tho  'en«on  assi«ne^ 
is  that  th«  rulers  of  the  European  nations,  the  legislatures  of  the  colo- 
Ses  beore  the  revolution,  aSd  of  the  several  states,  and  the  United 
States,  since  the  revolution,  have  all  asserted  the  "ciusive  right  of  the 
government  to  extinguish  the  Indian  title.    The  court  did   not  feel 
Sed  in  going  into  the  consideration  of  abstract  prmc.nles.     I  he 
Stion  to  be  decided  was  a  mixed  question  of  national  and  municipal 
faw    which  had  been  settled  by  the  practice  of  the  govemmente  of 
E^;;  and  America,  from  the 'discovery  of  this  -ntinent  to  the^j^^^^ 
sent  time.     But  the  Court  was  very  explicit  in  admitting  the  indian 
^^^^ISerTa^gXt  the  governments  of  Europe  agreed  among  them 
selves  to  respect  the  right  of  discovery  as  claimed  by  each,  the  court 
"""The  exclusion  of  all  other  European  nations,  necessarily  gave  to 

the  nation  making  the  discovery  the  sole  "f ** 'J^  "f^V.*""/ ^taton 
from  the  nortw*.  and  establishing  settlements  upon  it.       8  Wheaton, 

^'Sn:   •'They  [the  original  inhabitants]  were  admitted  tobe<lle 

.     rigt^l^iLtlo}  the  «J,  v>Uh  a  legai  as  mil  as  just  claim  to  nta^ 

SMicm  ofU.  Jd  to  use  it  according  to  their  own  discreUon.      p. 

.  ^Yet,  as  the  Indiana  could  not  aell  to  foreign  nations,  except  to  t^e 
dSscovercrs  and  those  claiming  under  them.  (J^"  b«";g  '^^T"^''  ^f 
•greement  among  the  European  nations;)  and  ?»  they  cou'd  not  seU 
tJprivate  purchasers,  (this  being  a  matter  of  municipal  J«^ YiponS  *°« 
whL.  and  often  of'tieaty  stipulation  between  whites  and  Indian^^^^^ 
the  natural  rights  of  Uie  Indians  were  impaired,  or  rather  circumscribed 
orlimited.    fher«  was  nothing  in  this  limitation,  however,  of  th«  nature 


,,;maBTn'iiMrlii!B'isj»f ' 


orgia,  till  after 
quiring  the  In- 
dilitional  proof 
/  the  citations 

lited  States  has 
Georgia.  But 
h  I  have  seen 
juristliclion,  or 
trcssions,  which 
ia  in  their  right 
[>wn  country,  to 

k,  that  the  con- 
r  such  a  nature, 
t  improperly  be 
though  this  con- 
cupancy,  which 
il  it  should  have 

C'ded  was,  that 
ihe  whiles,  ccn- 
renson  assigned 
ares  of  the  colo- 
,  and  the  United 
isive  right  of  the 
urt  did  not  feel 
principles.  The 
al  and'  municipal 
govemmenta  of 
tinent  to  the  pre- 
Ittiag  the  Indian 

eed  among  them- 
y  each,  the  court 

ecessarily  gave  to 
cquiring  the  soil 
it."     8  Wheaton, 

idmitted  to  he  the 
'ust  claim  to  retain 
1  discretion."     p. 

ons,  except  to  tl?e 
being  a  matter  of 
they  could  not  sell 
)al  lavr  among  the 
ites  and  Indians,) 
kher  circumscribed 
reter.ofthflnatuwi 


83 

of  usurpation  or  encroachment.  It  was  ft  matter  of  necessity,  if  per- 
petual  collisions  were  to  be  avoided  ;  and  a  .nuttor  of  mutual  benefit  to 
colonists  from  different  nations;  and  cspnc.al  ly  "^ ''«';''^",  ° /'"^X, 
dians.  What  a  scene  of  strife,  enmity,  fraud,  and  bloodshed,  would 
have  been  exhibited,  if  EnKl.sh,  I- ronch,  and  Span.sli  colonists  had 
been  permitted  to  makopurclm^s  of  Indian  lauds  from  tlio  same  tribe, 
in  the  same  neighborhood,  and  at  tho  same  tiino  ?  And  what  imposi- 
tions would  have  been  practised  upon  Indians  by  whita  P"'*^  .'^"7' 'J 
they  had  been  allowed  to  make  purchases  of  the  natives,  wi  liout  any 
restraint  from  the  government  ?  It  is  both  absurd  ''"^  "»^  ,'°  «7- 
Btrue  thin  necessary  limitation  of  the  natural  righta  of  the  Indians,  U 
limitation  which  was  necessary  to  the  proteciion  and  security  of  all 
parties,)  as  a  denial  that  the  Indians  hav6  any  rights  at  oil.  ihe 
^urt  gives  no  sanction  to  such  an  absurdity.  Besides  the  parages 
already  quoted,  are  several  others  in  accordance  with  the  came  prm- 

''' "Tt  has  never  been  contended,"  says  the  court.  "  that  the  Indian  title 
•mounted  to  nothing.  Their  right  of  possession  has  "«v«'  J«°"  .^"j;'' 
tioned.  The  claim  of  government  extends  to  tlio  complete  ultimate 
title,  charged  with  the  right  of  poa<fea»ion,  and  to  the  exclusive  power  af 

limitation  of  time;  though  they  arc  reslrainod  Iroin  soiling  their  coun- 
try to  any  individuals,  or  any  community,  except  tho  general  govern- 
ment  •  a  restraint,  which  operates  nltogothor  m  their   uvour. 

Agiin,  the  cou;t  says  :  '•  Such  a  right  [the  Indian  title  of  o''c«pa"cyj 
is  no  more  incompatible  with  a  soisen  in  fee,  than  a  loaso  for  years  is, 
and  might  as  efFectually  bar  an  ejeclniotit.       p.  r.9-. 

I  consider  this  passage  as  most  decisively  m  favour  of  the  r^A<  of  the 
Clerukees  o  renTain  on  their  land.  «.  long  a«  they  please.  Most  rea- 
dew  of  newspapers  do  not  understand  terms  of  law.  I  must  be  per- 
Sed.  Zefor^e,  to  attempt  an  illustration  of  what  is.  to  a  lawyer,  per- 

*^'lf  V-'lloids  land  to  himself  and  his  heirs  forever,  ho  is  said  to  be 
■eized  in  fee  of  that  land.  He  may  sell  an  estate,  or  interest,  in  th« 
laid  to  B.  and  his  assignee,  for  a  hundred  or  a  thousand  yours,  and  yet 
he  will  himself  remain  seized  in  fee  ;  hocau-.o,  at  the  ^^??^'^\^^ '^^ 
hundred,  or  the  thousand  years,  tho  land  will  «0'"«  "K"'"  »°  ^'^^  K 
MMbn  of  his  heirs.  During  all  this  time,  A.  and  his  heir,  "«  "'"^ '« 
fee  and  B  and  his  assigns  are  tenants  ror  years.  Now  a  decision  that 
Georgia  i  seizeS  in  fce*^  of  land  witl.in  her  chartered  liit.it..  whiftK  ind 
S  at  5  esent  in  tho  possession  of  iho  Cherokee.,  no  more  prove,  nat  the 
CherSkee.  are  net 'the  "  rigl.ful  occupants  of  [»'«  ^°;  ./J^\  «  >;8i'  "j 
well  as  just  claim  to  retain  possession  of  it,"  han  the  fact  "«»  A.  » 
TeiMd  in  foe  of  land,  of  which  B.  has  a  good  lease  to  him  and  his  as- 
•Ss  fir  a  term  of  years,  proves  that  A.  may  bring  an  ej^'^n^."*  ^-j^ 
B  while  the  term  is  unexpired.    As,  In  the  Utter  case.  A.  and  his  bji« 

mu.t  wait  till  the  hundred' or  the  thou.and  veart  ^'* ^^^''^'^^I'^'^Z 
«an  claim  potsession  ;  so,  in  the  c.ae  of  the  Cherokee..  0«f f*  JJ"« 
wait,  till  th!y  voluntarily  dispo«  of  their  country,  H|'2!;«iilS^tS 
of  the  treaty-making  power,  and  then  Georgia  mty  tak.  tlie  unowdiata 
possession. 


84 

There  is,  indeed,  another  poi.tilIe  alternative.  If  the  Cherokees 
rhould  make  war  upon  the  United  States,  they  »:  ghi  then,  by  the  laws 
of  nations,  be  treated  as  a  conquen  d  p^iople.  In  that  case,  their  country 
would  fall  under  the  full  sovereign*)  :  the  United  States,  and  by  virtue 
of  the  compact  of  1802,  that  part  of  it,  which  is  within  the  chartered  li- 
mits of  Georgia,  would  immediatciy  come  into  the  actual  possession 
of  Georgia.  But  so  long  as  the  Cherokees  act  in  a  peaceable  manner, 
it  would  be  barbarous  in  the  v  tienie  to  treat  them  as  a  conquered 
people.  I  speak  without  any  referen-e  to  treaties,  and  on  the  supposi- 
tion  that  we  were  bound  only  by  the  .iiaimon  obligations  of  justice  and 
humanity. 

It  is  to  bo  observed,  that  the  '-or  t  said  nothing,  in  either  pt  these 
cases,  as  to  the  effect  or  applicatiou  oi  treaties  What  was  said  on  the 
subject  of  the  rightful  occupancy  of  the  Indians,  had  respect  to  the  naked, 
claims  of  peaceable  Indians,  who  remained  upon  the  lands  of  their 
fathers.  How  much  stronger  the  ca^ie  of  the  Cherokee-^  now  is,  de- 
fended as  they  are  by  bo  many  solemn  stipulations,  must  be  apparent  to 
every  candid  mind. 


No.  XXII. 

Report  of  a  joint  committee  of  the  legislature  of  Georgia— Rea«o/iing  and  moral- 
ityofthe  Report— Lands  not  held  against  the  Indians  by  discovery  alone- 
Flagitious  immorality  cannot  be  legalized— Instance  of  the  slave  trade— Law 
of  Georgia,  Dec.  20,  1828— Remarks  upoa  it— Who  are  the  persons  thus  reduc- 
ed to  slavery  ? — and  by  whom  ? 

In  a  quotation,  which  my  last  number  contained,  from  a  decision  of 
the  Supreme  Court  of  the  United  States,  it  is  said,  "  That  the  Indian 
right  of  possession  has  never  been  questioned  ;"  and  that  "  it  has  never 
been  contended  that  their  title  amounted  to  nothing."  This  dicision 
was  pronounced  in  1823.  Since  that  time  the  politicians  of  Georgia 
have  strenuously  contended,  that  the  Indian  title  amounts  to  nothing. 

In  a  Report  of  the  Joint  Committee  of  the  Legislature  of  Georgia, 
which  was  approved  by  the  Senate  of  that  State,  December  27,  18^7, 
■re  found  such  passages  as  the  following  : 

The  Committee  say,  that  European  nations  »  assorted  succesfuUy  the  right  of 
occupying  such  parts"  of  America,  "  as  each  discovered,  and  thereby  they  esta- 
bliahed  their  supreme  command  over  it."  ■     ■     n. 

Again  :  "  It  may  bo  contended,  with  much  plausibility,  that  there  is,  m  these 
claims,  more  of /or«e ,than  o^ justice;  but  they  are  claims,  which  have  been  i« 
cognized  and  admitted,  by  the  whole  civilized  world ;  and  it  is  unquMtionably 
true,  that,  under  such  circurustanues,  force  becomes  right"  _    ^ 

The  committee  suppose  that  '  every  foot  of  land  in  the  United  States  «  »iold 
by  the  same  1  itie.  -,„«« 

The  Committee  say,  that  it  is  contended,  that,  by  the  compact  of  1802,  n.  cotm- 
dereUian  was  contemplated  to  i>e  paid  by  the  United  States  to  the  Indians,  for  their 
relinquishraont  of  tliis  title;  aud  therefore  that  it  was  of  such  a  character  as  wae 
entitled  to  respect,  and  as  could  not  be  taken  from  them  unless  by  their  consent. 
Tiw  Committee  add, »  But  we  ars  of  a  different  opinion." 

«  Before  Georgia  bseame  a  party  to  the  artieles  of  agreement  and  csasion,  [tue 


the  Cherokees 
3n,  by  the  laws 
3,  their  country 
I,  and  by  virtue 
le  chartered  li- 
:tual  possession 
ceable  manner, 
as  a  conquered 
on  the  supposi- 
s  of  justice  and 

I  either  pf  these 
was  said  on  the 
ect  to  the  naked 
s  lands  of  their 
jc^  now  is,  de- 
i  be  apparent  to 


laoning  and  moral- 
discovery  alone — 
slave  trade — Law 

lerson-s  thus  reduo- 


m  a  decision  of 
<  That  the  Indian 
at  "  it  has  never 
"  This  dicision 
;ians  of  Georgia 
its  to  nothing, 
iture  of  Georgia, 
;ember27,  ISSJ?, 

CBifuUy  the  right  of 
i  thereby  they  esta- 

it  ther»  ii,  in  thwt 
fhich  have  been  !••• 
it  i*  unquMtionably 

lited  State*  ia  hold" 

aotcf  180!Z,a  eonii- 
khe  lHdi!ini,  for  their 
I  a  character  aa  waa 
M  by  their  sonnent." 

snt  and  csMion,  [the 


compact  of  1802]  the  could  rightfully  have  po.MMedheri«lf  of  those  Unds,  either 
byTJo/iahon  with  the  Indians,  or  by /or«;  and  .ho  had  determ.ned,  in  one  of 
the  two  ways,  to  do  so  :  but  by  this  contract  she  made  it  tho  duty  of  the  United 
States  to  sustain  tho  expense  of  obtaining  for  her  the  possession,  provulod  it  could 
be  done  upon  reasonable  terms,  and  by  negotiation  ;  but  in  case  it  should  be  na- 
cessary  to  resort  to/orce,this  coi.tract  with  the  United  States  makes  no  provision: 
the  consequence  is,  that  fJeorgia  is  left  untrammelled,  and  at  full  liberty  to  pro- 
•ecute  her  rights  in  that  point  of  view,  according  to  her  own  discretion,  and  ae 

though  no  such  contract  had  been  made."  . 

The  Committee  give  it  as  their  opinion,"  that  the  right  of  soil  and  sovereignty 
was  perfect  in  Groat  Britain;  that  the  possession  o4  the  Indians  was  permissive  ; 
that  they  ware  under  the  protection  of  that  governraenl;  that  their  title  was  tem- 
porary ;  that  they  «ere  mere  te-iants  at  will ;  and  that  such  tenancy  ""g^t  have 
been  determined  at  any  moment,  eitlier  by  negotiation  or  force,  at  the  pleasure  of 

The  words  printed  in  italics  are  thus  distinguished  by  the  Committee. 

It  might  be  difficult  to  tel?,  which  is  most  remarkable,  the  reasoning 
or  the  morality  of  these  extracts.  ...  « 

The  Committee  argue,  that,  as  there  is  no  provision  m  the  compact 
of  1802,  by  virtue  of  which  the  United  States  are  bound  to  use  force 
upon  the  Indians,  it  follows,  that  Georgia  has  a  right  to  apply  force, 
whenever  she  pleases.  This  is  one  specimen  of  the  logic.  Agam :  to 
most  people  there  would  seem  to  be  weight  m  the  remark,  that,  as  tiie 
Indians  were  evidently  to  receive  a  consideration  for  their  lands,  they 
must  have  a  title  which  she  id  command  respect.  But  no  ;  m  view  of 
this  statement,  the  Committee  come  to  a  different  conclusion.     Here  is 

another  specimen.  .     ^        •    ,     •  i  ^ 

The  morality  of  the  doctrines  inculcated  by  the  Georgia  legislature 
may  be  sufficiently  understood  by  the  broad  positions,  that  discovery 
gave  absolute  title  to  Europeans  ;  that  the  title  of  the  original  inhabi- 
tants was  permissive  ;  tiiat  it  was  a  mere  tenancy  at  will,  (whici;  is  no 
title  at  all)  ;  that  the  discoverer  migiit  determine  the  tenancy  at  any  mo- 
ment, by  negotiation  or  force ;  and  that,  as  all  European  governments 
are  alleged  to  be  agreed  m  these  principles,  "force  becomes  right. 

The  mhabitants  of  North  America  might,  tliercfore,  have  been  riglit- 
fuUy  driven  into  tho  ocean,  "  at  any  moment^  when  the  discoverers 
should  have  been  willing  and  able  thus  to  drive  them.  It  is  to  be  infer- 
red, that  Cortes  and  Pizarro  were  only  executing  the  lawful  commands 
of  the  king  of  Spain,  when  they  were  taking  possession  of  Mexico  and 
Peru,  which,  according  to  this  doctrine,  rightfully  belonged  to  him  ; 
though,  in  doing  so,  they  were  uuder  the  unpleasant  necessity  of  murder- 
frig  the  uriginal  inhabitants. 

The  tlo^.mittee  are  entirely  mistaken,  in  point  of  fact,  when  they  say, 
shr'  «  eveiy  foot  oi'  land  in  the  United  States  is  held"  by  such  a  title  as 
tiBj  beftn  described  ;  that  is,  a  tiile  in  the  European  sovereign,  which, 
on  the  moment  of  discovery,  supplanted  and  subverted  all  the  nihts  ol 
the  natives  to  the  lands,  on  which  they  were  born,  and  of  which  (hey 
were  in  full  possession.  It  may  be  truly  said,  >hat  there  is  not,  within 
the  limits  of  the  United  States,  as  fi.Ted  by  the  pv-ace  of  1783,  a  single 
foot  of  land  held,  as  against  the  original  inhabitants,  by  the  title  ot  dis- 
covery alone.  Incompara*^ly  tho  largest  portion  of  the  territory,  withm 
the  above  mentioned  limits,  '.lus  been  purchased  of  the  Indians.  Some 
■wall  portions  hava  been  conquered ;  the  original  owners  have  been  siearly 


86 


•xterminated  in  war,  or  driven  from  their  lands  by  a  Buperior  force,  or 
compelled  to  cede  them,  as  the  price  of  a  pacification.     But  in  all  these 
eases,  tlie  wars  had  some  other  origin,  than  an  attempt  to  enforce  the 
title  of  discovery.     The  politicians  of  Georgia  are  requested  to  produce 
a  single  instance,  after  the  settlement  of  the  Anglo-American  colonies 
commenced,  of  any  English  sovereign,  or  any  colonial  governor,  or  any 
colonial  legislature,  or  any  State  Legislature,  anterior  to  the  treaty  of 
the  Indian  Spring,  in  1825,  having  assumed  the  right  of  takmg  forcible 
possession  of  Indian  country,  at  any  moment,  by  virtue  of  the  title  of 
discovery,  and  without  any  regard  to  what  the  Supreme  Court  has 
called  "  the  just  and  legal  claim"  of  the  natives  to  return  possession  of 
their  country.     The  exclusive  right  of  extinguishing  the  Indian  '«rt«,  <>' 
what  has  usually  been  called  the  right  of  pre-emption,  is  a  totally  difler- 
ent  thing  from  this  all-absorbing  and  overwhelming  right  of  discovery, 
on  which  Georgia  new  insists.     If  a  single  instance  of  such  an  assump- 
tion can  be  produced,  let  it  be  brought  forward.     Let  us  contemplate 
the  circumstances  in  which  it  originated,  and  examine  its  clainis  to  re- 
■pect.     Thousands  of  instances  can  be  adduced,  on  the  other  hand,  of 
acknowledgments  made  by  emigranU  from  Europe,  and  by  rulers  of 
every  grade  from  the  highest  to  the  lowest ;— acknowledgments,  which 
admitted  the  perfect  right  of  the  Indians  to  the  peaceable  possession  of 
their  country,  so  long  as  they  chose  to  retain  it. 

But  if  all  the  governments  of  Europe  had,  during  the  three  last  cen- 
turies, held  the  doctrine  now  so  warmly  espoused  by  Georgia,  how 
utterly  vain  would  be  every  attempt  to  defend  it,  or  to  make  it  appear 
otherwise  than  tyrannical,  cruel,  and  abominable.  Not  all  the  monarchs 
of  Europe,  nor  all  the  writers  on  the  laws  of  nations,~not  all  the  power 
and  all  the  sophistry  in  the  world,— could  alter  its  character,  or  convince 
an  honest,  candid,  intelligent  man,  that  it  is  entitled  to  the  least  respect. 
What  is  this  doctrine,  so  necessary  to  the  present  claims  of  Georgia  1 
It  is  neither  more  nor  less  than  the  assumption,  that  the  circumstance 
of  an  English  vessel  having  sailed  along  the  American  coast  from  Cape 
Hatteras  to  the  Bay  of  Fundy,  as  the  case  might  be,  gave  the  English 
king  an  absolute  and  perfect  title,  not  only  to  the  coast,  but  to  all  the 
interior  ;  and  that  he  might  therefore  empower  any  of  his  subjects  to 
take  forcible  possession  of  the  country,  to  the  immediate  exclusion  and 
destruction  of  the  original  inhabitants. 

In  the  History  of  the  slave-trade,  we  have  a  perfect  exhibition  of  the 
total  inefficac  of  human  law  to  sanction  what  is  flagitiously  immoral ; 
especially  after  the  eyes  mankind  are  fixed  upon  it.  For  more  than  two 
hundred  years,  the  principal  powers  of  Europe  legalized  the  slave-trade. 
The  judicial  tribunals  of  all  countries  sustained  it  by  their  decisions. 
It  was  universally  established  and  assented  to.  But  was  it  right  ?  i  he 
voicewf  the  world  has  pronounced  its  irrevocable  sentence.  Tt  i»  now 
piracy,  and  to  have  been  recently  connected  with  it  is  indehble  infamy. 
But  is  it  more  clearly  wrong  to  take  Africans  from  tlietr  native  land, 
than  it  is  to  make  slaves  of  the  Cherokees  «»pon  <*«*'•  ""tive  land  '.  or, 
on  penalty  of  their  being  thus  enslaved,  driving  them  into  exile  ! 

It  may  be  suppoaed,  that  thia,  ia  t«  strong  a  representation  of  the 
caw  ,  and  that  it  would  be  no  very  awioua  calamrty  to  the  Cherokees, 
if  they  were  to  com.  under  the  laws  of  G«»iii«.     Oce  wouJd  thmk, 


87 


luperior  force,  or 
But  in  all  these 
ipt  to  enforce  the 
jested  to  produce 
merican  colonies 
governor,  or  any 
r  to  the  treaty  of 
of  taking  forcible 
uc  of  the  title  of 
iretne  Court  has 
tain  possession  of 
he  Indian  title,  or 
is  a  totally  difler- 
ight  of  discovery, 
f  such  an  asaump- 
et  us  contemplate 
3  its  claims  to  re- 
ihe  other  hand,  of 
and  by  rulers  of 
'ledgments,  which 
able  possession  of 

the  three  last  cen- 
by  Georgia,  how 
to  make  it  appear 
t  ail  the  monarchs 
-not  all  the  power 
•acter,  or  convince 
I  the  least  respect. 
aims  of  Georgia  ? 
;  the  circumstance 
n  coast  from  Cape 
,  gave  the  English 
inst,  but  to  all  the 
of  his  subjects  to 
iate  exclusion  and 

t  exhibition  of  the 
^itiously  immoral ; 
For  more  than  two 
ed  the  slave-trade, 
by  their  decisions, 
vas  it  right  ?  The 
fitcnce.  It  is  now 
s  indelible  infamy. 

tlieir  native  land, 
r  native  land  ?  or, 
into  exile  ? 
presentation  of  Um 
to  the  CberokMSi 

Otse  wouJd  think, 


howeter,  that  the  spirit  of  the  Report,  from  which  quotations  have  been 
made,  must  be  an  indication  of  what  is  to  be  expected  from  Georgia,  m 
the  way  of  systematic  legislation  on  this  subject. 

One  law  has  already  been  enacted,  with  the  direct  view  of  extendmg 
the  jurisdiction  of  Georgia  over  the  Cherokees.  It  was  approved  Dec. 
20   1828, -and  deserves  a  particular  consideration. 

The  first  five  sections  divide  that  part  of  the  Cherokee  country, 
which  falls  within  the  chartered  limits  of  Georgia,  mto  five  portions, 
attaching  each  one  of  these  portions  to  a  contiguous  county  of  Geor- 
gia The  sixth  section  extends  the  laws  of  Georgia  over  white  res" 
dents  within  the  limits  above  mentioned;  and  the  seventh  declares, 
that,  after  June  1,  1830,  all  Indians  "  residing  in  said  territory,  and 
within  any  one  of  the  counties  as  aforesaid,  shall  be  liable  and  sub- 
ject to  such  laws  and  regulaUons,  as  the  legislature  may  hereafter  pre- 

8cribG>" 

Seo  8.  »  That  all  law»,  UM»ge»,  and  customs,  made,  eBtablighed,  and  in  force,  in 
the  said  territory,  by  the  said  Cherokee  Indians,  be,  and  the  same  are  hereby,  on 
and  after  the  first  di^y  of  Juno,  1830,  declared  null  and  void. 

9  »  That  no  Indian,  or  descendant  of  Indian,  residing  within  the  Creek  or  Che- 
rokee nation,  of  Indians,  shall  be  deemed  a  competent  *'l"«*«' °' ^  P" ^"^^"-^ 
•uit.  in  any  court  created  by  the  constitution  or  law.  of  this  State,  to  which  a 
white  man  may  be  a  party." 

Under  the  administration  of  this  law,  a  white  man  might  rob  or  mur- 
der a  Cherokee,  in  the  presence  of  many  Indians,  and  descendants  of 
Indians  ;  and  yet  the  offence  could  not  be  proved.     That  crimes  of  this 
malignant  character  would  be  committed  is  by  no  means  improbable  ; 
but  assaults,  abuses,  and  vexations,  of  a  far  interior  stamp,  would  render 
the  servitude  of  the  Cherokees  intolerable.     The  plan  of  Georgia,  is,  as 
explained  by  her  S^^nate,  to  seize  five  sixtlis  of  the  territory  in  question, 
and  distribute  it  amon^r  her  citizens.     If  a  Cherokee  head  of  u  family 
chooses  to  remain,  he  mn  •  possibly  have  his  house  and  a  little  farm  as- 
siened  to  him.     Thits  it,  fafc  n.ost  favomble  supposition.     But  his  rights 
are  not  acknowledged.     He  does  not  keep  the  land  because  it  is  his 
own  •  but  receives  it  as  a  boon  from  Georgia.     He  will  be  surrounded 
with  five  white  neighbors.     These  settlers  will  not  be  from  the  more 
sober,  temperate,  and  orderly  citizens  of  Georgia,  but  from  the  idle,  the 
dissolute,  the  quarelsome.     Many  of  them  will  hate  Indians,  and  take 
every  opportunity  of  insulting  and  abusing  them.     If  the  cattle  of  a 
Cherokee  are  driven  away  in  his  presence  ;  if  his  fences  are  thrown 
down  and  his  crops  destroyed  ;  if  his  children  are  beaten,  and  his  do- 
mestic sanctuary  invaded  ;— whatever  outrage  and  whatever  injury  »ie 
may  experience,  he  cannot  even  seek  a  legal  remedy.     He  can  neither 
be  a  party,  nor  a  witness.     He  has  no  friend,  who  can  be  heard  m  h:» 
behalf.    Not  an  individual  can  be  found,  who  has  any  interest  in  seeing 
justice  done  him,  and  who,  at  the  same  time  has  any  power  to  serve  him. 
Even  the  slaves  of  his  new  neighbors  are  defended  by  the  self-interest 
of  their  masters.     But  he  has  not  even  this  consolation.     He  is  exposed 
to  the  greatest  evils  of  slavery,  without  any  of  its  alleviations,     tvery 
body  is  let  loose  upon  him  ;  and  it  is  neither  the  interest,  nor  the  incli- 
nation, nor  the  official  duty,  of  the  white  settlers  to  defend  him.     fcvery 
body  may  destroy  his  property  ;  but  nobody  is  bound  to  kaep  him  trom 


5',, 


88 

■tarving,  when  his  property  ii  gooe.    How  long  could  a  Cherokee  live 
under  such  treaUntJiit  as  this  ?      ^    ..  ,       .  ,•.,•, 

Accustomed  f.oni  his  birth  to  feelings  of  entire  equality  and  indepen- 
dence he  would  find  himself,  at  a  single  stroke,  smitten  to  the  earth, 
and  there  held  till  manacles  of  a  most  degrading  vassalage  were  fasten- 
ed upon  him.  Aa  soon  as  the  net  of  Georgia  legislation  is  sprung  over 
bim  he  is  equally  and  instantly  exposed  to  public  persecution  and  pri- 
vate indignity.  He  feels  himself  to  be  a  vagabond,  even  while  standing 
uDon  the  very  acrtis,  which  his  own  hands  have  laboriously  subdued  and 
tiUed  —an  outlaw,  in  the  house,  which  he  has  erected  and  made  com- 
fortable for  himseli;  and  which,  to  a  white  man,  would  bo  a  castle,— a 
trespasser,  for  innocently  treading  the  soil  of  his  native  foreste,— an  in- 
truder, for  drinking  the  pure  water  of  his  native  sprmgs,  or  breathing 
the  air  of  his  native  mountains,— a  stranger  among  his  neighbors,— an 
alien,  on  the  spot  where  he  was  born.  .1,1 

Who  are  the  human  beings,  thus  suddenly  brought  into  bo  deplorable 
and  abject  a  condition  ?  Are  they  Caffres  and  HottentoU,  skulking 
through  the  woods,  m  a  state  of  nudity,  or  covered  only  by  a  few  shreds 
of  tattered  sheepskin  ?  Are  they  runaway  slaves,  pursued  by  the  ven- 
geance of  exasperated  masters  ?  Are  they  Ishmaelites,  waylaying  the 
nath  of  inoffensive  trawellers,  and  their  hands  reeking  with  the  blood  of 
recent  murders  ?  Are  they  bands  of  ruffians,  collected  from  the  worst 
amonc  the  discharged  tenants  of  our  penitentiaries  ?  Have  they  m- 
vaded  our  setUements,  driven  off  the  inhabitants,  and  established  them- 
selves in  an  unrighteous  possession,  of  which  they  are  now  about  to  be 
divested  '  What  is  their  character,  and  what  is  their  crime,  that  thew 
lands  are  to  be  divided,  and  their  persona  and  families  to  be  put  beyond 
iho  nrotection  of  the  law  ?  ,    ,      •  ,  ,  •    „ 

If  they  were  Caffies,  or  Hottentots,  they  should  be  dealt  with  kindly ; 
.nd  should  be  compassionated  in  their  ignorance  and  degradation.  It 
Lme  of  them  were  Ishmaelites  and  renegadoes,  they  should  be  tried  in 
VreRuJar  manner.  The  innocent  should  not  be  punished  with  the 
ouiltv  The  guilty  should  not  bo  punished  without  a  trial  ;  and 
Neither  Uie  imwceat  nor  the  guUty,  should  be  delivered  over  to  private 

""how  would  an  intelligent  foreigner,  a  German,  a  Frenchman,  or  an 
Englishman,  be  astonished  to  learn,  that  the  Cherokees  aro  neither  sa- 
vages  or    criminals  ;-that  they    have  never   encroached   upon   the 
lands  of  others  ;-th8t  their  only  offence  consists  in  the  possession  of 
Snds  which  their  neighbors  covet  ;~that  they  are  peaceful  igncultu- 
r^ts,  better  clothed,  fed,  and  housed,  than  many  of  the  pe.santry,  in 
S  civilized  countr.-,s;~that  they  have   ^"^^^•"^'J.'Jf  ""f^^j^jf  J; 
Sons  with  tho  whites,  at  different  periods,  from  the  first  settlement  of 
he  contiguous   territory  by   Europeans  ;-that   these  relations  have 
ripened  into  a  firm  and  lasting  peace,  which  has  not  b^e"  broken  ^y  a 
•     Zgle  act  of  hostility  for  forty  years  ; -that  the  peace  thus  cemented 
tfl  e  subject  of  numerous  treaties,  the  bases  of  which  are,  a  sove- 
reignty  of  the  Ckerokees,    limited,  in  certain  respects,  by   express 
Suctions,  and  a  guaranty,  on  the  part  of  the  United  States,  of  pro- 
tection and  inviolate  territorial  limits  ;-that  the  treaties  have  been  the 
SaUon   of  numerous  legal  enactmente  for  the  protecUon  of  the 


a  Cherokee  live 

ity  and  indepeo' 
en  to  the  earth, 
ge  were  fasten- 
1  is  sprung  over 
^cution  and  pri- 
1  while  standing 
sly  subdued  and 
and  made  com- 
bo a  castle, — a 
forests, — an  ia- 
gs,  or  breathing 
neighbors, — ^an 

ito  BO  deplorable 
entots,  skulking 
by  a  few  shreds 
ued  by  the  ven- 
18,  waylaying  the 
rith  the  blood  of 
1  from  the  worst 
?  Have  they  in- 
jstablished  them- 
[low  about  to  be 
crime,  that  their 
o  be  put  beyond 

ealt  with  kindly ; 
degradation.  If 
liould  be  tried  in 
inished  with  the 
It  a  trial  ;  and 
)d  over  to  private 

<'renchman,  or  an 
B  aro  neither  sa- 
tached   upon   the 

the  possession  of 
eaceful  igricultu- 

the  persantry,  in 

diplomatic  rela- 
first  settlement  of 
386  relations  have 
been  broken  by  a 
ice  thus  cemented 
rbich  are,  a  sove- 
)ects,  by  express 
ed  States,  of  pro- 
les have  been  the 

protection  of  the 


89 

weaker  party,  whow  title  has  been  pronounced,  by  the  highest  tnba. 
M?  in  our  country,  to  be  worthy  of  the  respect  of  all  courts,  til  it  be 
legitimately  extinguished -.-that  the  Cherokee,  «™  ""'  ^j-^^.,,*^^^^ 
having  broken  their  engagements,  or  done  any  thmg  to  forfeit  the 
Sty,  which  they  had 'received  as  the  indispensable  condition  of 
the"  g  Jnu  to  the  United  States  ;-that  they  have  always  been  called 
bro'he«  and  children  by  tiie  President  of  the  ^nUed  States  and  _byal 
other  public  functionaries,  speaking  m  the  name  of  »he  country  -  hat 
thev  have  bf  en  encouraged  and  aided,  in  rising  to  a  state  of  civiliza- 
tion, by  ouV  national  go?ernment,  and  benevolent  associations  of  indi- 
Juals!  Zi  one  grea't  motive,  presented  to  their  minds  by^he  8°vern- 
ment  has  uniformly  been  the  lope  and  expectation  of  a  permanen   re- 

SL,  asTrmers^  and  mechanics,  "PO"  »^J'"/'»  <>f  ^''^^ITS 
and  the  enjoyment  of  wise  laws,  administered  by  themselves,  "PO"  truly 

«publicanVrinciples  ;  that,  relying  upon  these  «""»"''««•  ^'"•^^^".tri 
bv  such  a  hope,  and  aided  in  the  cultivation  of  their  minds  and  hearts 
b'y  bene^oZt  individuals  stationed  among  them  at  '^enr  own  request 
aJd  partiy  at  the  charge  of  the  general  P°vernment,  they  have  greaUy 
risen  to  their  character,  condition,  and  prospects  .-^h^^^'^^.J^r^  "-'^ 
ffularlv  organized  government  of  their  own,  consisting  of  Nislal  ve. 
fuSl,  a'nd  execu'tive  departments,  formed  by  t^J  '^^  ^^  »;  .^'^ 
President  of  the  United  States,  and  now  in  easy  and  natural  operation  , 
-Ithat  a  n°aio  ity  of  the  people  can  read  their  own  language,  which  was 
„e  ef  reducid  d  writing  till  less  than  seven  year.  «go.«"d  never  pnnt 

ed,  till  within  less  than  two  years  ;~that  a  ^^f'^'^'f^.^^'^^^^J^Z 
young,  and  some  of  the  older,  can  read  and  write  the  Eng|«h Jj"" 
„,,,„«  —that  ten  or  twelve  schools  are  now  attended  by  Cherokee  ^ 
Sren  j^Lrfor  years  past,  unassisted  native  Cherokees  have  been 
Sle  to  tansact  public  business,  by  written  communications,  which,  to 
Ly  the  leas  .  nee^d  not  fear  a  comparison,  in  point  of  style,  sense,  and 
frjument,  ^.th  many  communications  "^^^^ '^J^^'^'.^J,  SS" Cherl 
highest  functionaries  of  our  national  government ;— that  these junero 
keesTn  the  treatment  of  whites,  as  in  their  mtercourse  with  each 
other,  ^m  Id  i.i  their  manners,  and  hospitable  '"jl^'F  f 'X'tSe 
conduct--and,  to  crown  the  whole,  that  they  are  bound  to  us  by  Uie 
tiS  of  cCtia^ity  which  they  profess,  and  which  many  of  tiiem  exem- 
nlifr  as  members  of  regular  Christian  churches.  ,  ,       ,.  . 

^ThesHrTthe  men,  whose  country  is  to  be  wrested  from  them,  and 
who  are  to  be  brought  under  Uie  laws  of  Georgia  withou  their  own 
rolnt  These  civilized  and  educated  men  ;-U,ese  orderly  members 
of V«)ciety,  raised,  in  part  by  the  fostering  care  of  our  national  gov- 
ImXfrim  rude  materials,  but  now  exhibiting  f  go;^.^««;e«  jf 
«mmeti^  and  beauty  ;—tiiese  laborious  farmers,  and  practical  repub- 
JE^th^  dependent  allies,  who  committed  tiieir  all  to  our  good 
fSSon  th?^gu«?anty»  of  Gen.  Washington,  the  "  assurance"  of  Mr. 
jl'rSL,  and^he  re"assurance  °f  Ge»-  J"''^'"  ""t  if'A.fSd 
sanctioned,  as  these  several  acts  were,  by  the  S^n«*«  *»f  l5fl«yS^m 
SUtos  ;-these  "  citizens  of  the  Cherokee  naUon,"  as  we  <»I»«f  »Je; 
SZ  Wty  of  Holston  j-tiiese  fe«ow  Christians,  '^i^"^''?^^ 
of  Moravian,  Presbyterian,  Baptist,  \nd  Me^t  ^^'Jf^ 

It 


i 


brought  under  the  lawi  of  Huorgia,  according  to  which  they  car  be 
neither  witn«,i.e«,  n  r  parties,  in  a  rourt  of  justice  Lnder  .he  wji, 
did  I  any  '  It  is  a  in«i  ^trous  pcrvci-<>on  to  cull  such  a  state  of  Hiinga 
living  under  law.  The?  are  to  be  „.  rle  outlaws  on  the  land  of  the.r 
fathera  ;  and,  in  thia  condition,  to  be  allowed  the  pnvilege  ot  choosing 

between  exile  and  chains.  ,     , .  ,.       .1  .„j 

But  who  are  th-  men,  that  impose  so  fearful  an  alternative  7  and 
what  is  the  governmenl,  that  hesitates  to  redtcm  its  pledge?  Is  it 
some  rotten  Asiatic  despotism,  sinking  under  the  crimes  and  corrup- 
tions  of  by-gone  centuries,  feeling  no  respoi.^ibilit ',  and  regarding  no 
law  of  morality  or  religion  ?  Not  so-  It  is  a  government,  which  sprung 
into  existence  with  the  declaration  » that  all  men  are  created  ecp  ' ; 
that  they  are  endowed  by  their  Creator  nith  certain  unalienable  righu  ; 
that  am'ng  these  are  life,  liberty,  and  the  pursuit  nl  happiness  trom 
a  government  thus  established,  thi.  flagrant  wronj;  is  apprehended  ;  and 
frim  a  people,  who  boa«<t  that  they  are  the  freest  and  most  enlightened 
ecLunityon  earth;  wt..  inaiat  on  the  right  of  every  community  to 
govern  itself;  and  who  abjure  the  very  idea  ot  foreign  dictation. 


No.  XXIII. 

Viaws  of  benevolent  inc  vidualiH-Suppo.ed  i»«'>"^''"'«"'=f-°«°'«i' ""'JT;;;" 
«d  of  her  ri(rht.-The  Cherokee  countr/not  of  great  value-No  cauae  of  alaim 
?,„m,^»;„«mi^im»(rto— Indian  tribe,  in  tne  older  States-Term.,  on  which 
£  InTarare  eiJSXuld  be  e.tingu.hed-The  con.ent  of  the  Ind.an^ 
TheconMnt  of  the  United  States-Chancellor  Kent  .  deci.10,..  with  refcr.nc. 
to  principles  of  public  morality. 

There  are  in  our  country  not  a  few  benevolent  individuals,  who 
cheerfully  admit  that  the  Indians  have  a  perfect  right  to  the  possession 
of  their  country;  that  we  are  boui.  i  by  treaties  to  defend  tins  right; 
and  that  the  forcible  seizure  and  division  of  their  landa  would  be  an 
act  ofcnormoui  injustice:  who  yet  suppose,  that  the  continuance  of 
the  Cherokees,  where  they  now  are,  would  be  extremely  mconyenient 
to  Georgia  and  to  the  United  SUtea.  These  persons  are  mclmed  o 
think,  that  the  inconvenience  will  be  found  so  great,  as  to  amoimt  to 
awrt  of  moral  necessity  ;  and  that,  therefore,  the  sooner  the  Chero- 
kecs  consent  to  a  removal,  the  better  it  will  be  for  them,  as  well  as  for 
the; '  white  neighbours.  ,  ,,  .         ^u 

Au  acquaintance  with  the  real  state  of  facts  would  convince  these 
benevolent  individuals,  that  they  are  quite  mistaken,  '"  f^gard  to  (_he 
best  manner  of  promoting  the  permanent  good  of  all  parties.  The  in- 
convenience,  which  appears  so  formidable,  is  «J'og«;h°r  imaginary. 
It  will  utterly  vanish,  at  the  very  moment  when  the  state  of  Georgia, 
'  and  other  white  neighbours  of  the  Indians,  Bhall  be  inclined  to  do  what 
b  right.  If  the  disposition  to  take  the  property  of  the  weak  and  de- 
fencdess  and  convert  it  to  our  own  use,  is  to  be  ^'e^'^;\''l^  '^^ 
name  of  moroZ  necesnty,  we  should  be  aware  that  such  a  doctrine  sub- 
Terta  the  very  foundation  of  law  and  order.  r.«-„:. 

It  is  urged,  that  if  the  Cherokees  remain  where  they  are,  Georgia 


"*ife 


h  they  car  ht 
imler  tlie  !  wi, 
state  or  Ibings 
le  land  of  their 
tg«  o(  choosing 

Iternative?  and 
pledge  ?  Is  it 
es  and  corrup* 
i  regarding  no 
it,  which  sprung 
created  eq»  ' ; 
jienable  rigtiui ; 
pincss  "  From 
jrehcnded  ;  and 
nost  enliirhtcned 
y  cnrnmunity  to 
lictation. 


Seorgia  not  depriv- 
-No  caute  of  alaim 
— Terma,  on  which 
It  of  the  Indiana — 
on,  with  referance 


individuals,  who 
X)  the  possession 
efend  this  right ; 
da  would  be  an 
B  continuance  of 
lely  inconvenient 
I  are  inclined  to 
as  to  amount  to 
oner  the  Chero- 
m,  as  well  as  for 

1  convince  these 
in  regard  to  the 
parties.  The  in- 
elher  imaginary, 
state  of  GeorgiOf 
;lined  to  do  what 
le  weak  and  de- 
ignified  with  the 
h  a  doctrine  sub- 

ley  are,  Georgia 


i,  deprited  oft  very  valuable  portion  of  land  within  h«r  charioredl.mii.^ 
B  t  U".  'n  abuse  ol  language.^  Georgia  .  deprtved  ol    othmg.     If  the 

a:wh4  would  bo  v'n-on..nlent  to  h.m  and  w^^^^^^^^^^^^ 

j;gt;M=tS.r  i:;^.^  ^;:^:s^;.i.of^atior{u.w.n^ 
^z\.:tetr£rr^^^  :!X^i.  ri:;:.=dbe.o 

Tny  o?  Z    Z:L  we.    ,  an.l  U.e  «le.e-eless  who  are  .  perpetual 
dan  Jcr  of  being  trodden  un.i»-  the  feet  of  their  betters  ! 

Thu.  it  is  that  11,  ^atiablo  desircm  of  men  create  .magmary  trou- 
bleT'l'he  State  of  Georgia,  exclusive  of  the  Cherokee  country,  has 
onW  s.x  or  seven  ,ouU.ont  half  of  whom  are  black.,  to  each  sq""e 
mile  thai  is,  o.nitting  merchants,  tr.v.lers,  and  mechanics,  ess  than  one 
wLuo  f  ml  to  wo  4„are  miles  of  land.  The  most  remote  p.rt  of  her 
dnrtered  hnits  is  still  in  the  rightful  occupancy  of  the  Cherokees.rhe 

fbTLnT:       nTe'ciSeT  stal  i?ankly  how  large  a  parti, 

composed  '.'  mountains  and  barren  tracts,  which  a  Georgian  wou'J  P  o- 

"'VZliiv      Let  thSehinVs  be  stated,  and  it  will  be  found  that  the 
StoTee'cLn!;;'!!  n"?  by  aV  means  so  valuable,  as  ha.  commonly 

'it^clTCke  no  odds  as  to  title,  whether  the  soil  be  as  fertile  as  tb. 
hanks  of  the  Ganges,  or  as  barren  as  the  sands  of  Arabia  ,  but  t 
should  be  knownf  that  the  value  of  the  property  here  at  snke  is 
«o°Sg,  compared  with  the  feelings  of  the  Clierokee,,;  not  to  mention 
The  importance  of  the  principles  to  be  deeded.  Though  the  Cherokee 
cTurrris  in  a  healthful  climate,  and  is  a  pleasant  and  <^"">fo'-»f,5'«;^"- 
S^nce  for  the  original  inhabitants,  the  far  greater  part  of  it  would  bo  left 
Sucl^d  for  mLy  years,  if  exposed  to  sale  in  the  same  manner  as  the 
Tublic  knds  generally  of  the  United  States.  The  -'««;' °fG-;S^«J 
therefore,  is  inconsiderable  ;  nor  would  the  P'^^'Pt"'^ f  i'',^\ul\*^,ri 
materially  affected,  if  another  acre  were  never  vo  be  added  to  the  tern- 

nrarbe?nXttTrgrt%nconvemencewi^^ 
ha"ng  anmpmum  .^impirior-a  separate,  independent  conjmunity 
surroLded  bVour  own  citizens.     But  in  what  do  these  f"ghtf"l  '""!"■ 
veniences  comist  ?    A  little  pacific  communUy  of  I«  J"^"''  ""^K^JJ 
the  mounUios,  attending  to  their  owu  concerns,  and  treaung  aU  who 


■■ 


92 

paM  through  their  borders  with  kindne*  and  hoipitality,  ia  lurely  no  fery 
great  cauae  of  alarm.  If  there  were  a  territory  in  posaeaaion  of  a  pow- 
erful and  hostile  nation,  biuI  in  iho  immediate  vicinity  of  our  white  set- 
tlementa,  where  our  rivals  and  enemica  miulit  sh«!lter  themselvea,  while 
plotting  airninit  our  peace,  and  where  fugitivea  from  jnslice  could  find 
ft  refuge,  there  might  be  some  reason  for  apprehonaion  ;  though  even 
these  circumstances  would  never  excuse  a  violation  of  treaties.  But 
the  Cherokeea  can  never  have  any  interests  adverse  to  our  national 
prosperity.  They  have  solemnly  agreed  to  live  under  our  protection, 
and  to  deliver  up  fugitives  from  justice.  We  have  by  treaty  a  free  na- 
vigation of  their  waters,  and  a  free  passage  through  their  country.  What 
more  can  we  reasonably  desire  ? 

But  if  they  were  an  inconvenience  to  us,  as  a  consequence  of  the.r 
having  been  aboriginal  inhabitants  on  this  continent,  how  are  these  in- 
habitants to  blame  ?  If  we  are  incommoded,  by  having  a  little  Indian 
community  in  the  midst  of  us,  we  brought  the  evil  upon  ourselves  by 
pushing  our  settlemenU  into  the  wilderness,  in  such  a  manner  as  to  sur- 
round our  red  brethren.  They  did  not  compel  us,  nor  allure  ui.,  nor  in- 
vite us,  to  such  a  course  of  proceeding  ;  and  they  are  not  under  the 
slightest  obligation  to  give  up  their  national  existence  to  save  us  from 
this  supposed  inconvenience,  though  it  were  many  times  greater  than  it 
has  ever  been  alleged  to  be. 

The  dangers  from  an  imperium  in  imperio  are,  in  the  case  before  us, 
ftltogether  chimerical.     Among  our  own  citizens,  we  have  governments 
within  governments,  of  all  sizes  from  a  school  district  upwards  ;  and  all 
sorts  of  corporations  with  limited  powers.     In  Great  Britain,  there  is  a 
vast  diversity  of  customs,  rights,  franchises,  and  exemptions,  peculiar  to 
different  towns,  boroughs,  cities,  and  counties,  and  to  the  larger  divisions 
of  the  realm.     Germany  is  almost  wholly  composed  of  smaller  commu- 
nities, each  possessing  a  limited  sovereignty  ;  and  many  of  them  conduct- 
ing their  municipal  affairs  according  to   their  own  discretion.     But, 
(which  is  more  immediately  to  the  purpose,)  there  hove  been  separate 
communities  of  Indians,  in  most  of  the  older  members  of  our  confede- 
racy, from  the  first  settlement  of  our  country  ;  and  no  disastrous  conse- 
quences have  followed.     At  the  present  day  there  are,  in  the  State  of 
New  York,  several  small  tribes  of  Indians,  living  under  their  own  laws, 
and  not  partaking  of  the  rights  of  citizens  of  the  United  States.     They 
have  been  declared,  by  the  highest  legal  tribunal  in  that  State,  to  be 
••  not  citizens,  but  distinct  tribes  or  nations,  living  under  the  protection 
of  the  government."     The  opinion  of  Chancellor  Kent,  which  I  never 
saw  till  all  the  preceding  numbers  were  in  the  printer's  hnnds,  supports 
the  positions  which  I  endeavoured  to  establish,  in  the  examination  of 
treaties.     Yet  the  State  of  New  York  does  not  appear  to  suffer,  from 
having  permitted  these  tribes  to  remain  on  their  own  land  ; — to  hold  it 
in  common  , — to  remain  exempt  from  taxes,  military  duty,  and  every 
kind  of  public  burden ; — and  to  sustain  a  qualified  sovereignty,  though 
surrounded  by  white  neighbours. 

If  the  time  shall  ever  arrive,  when  these  sovereignties  may  become 
extinct  to  the  mutual  advantage  of  the  Indians  and  whites,  the  manner 
of  bringing  about  such  »  cliangis  will  demaiad  the  efforts  of  the  most  dis- 


II. 


r 


is  fureljr  no  verj 
ission  of  a  pow- 
r  our  whittj  aet' 
lemselvct,  while 
nice  could  find 
n  ;  though  even 
r  treaties.  But 
to  uur  national 
our  protection, 
treaty  a  free  na- 
r  country.  What 

quencc  of  their 
low  arc  these  in- 
\g  a  little  Indian 
pon  ourselves  by 
iianner  as  to  sur- 
allure  u^.^  nor  in- 
■e  not  under  the 
I  to  sa  ve  us  from 
9  greater  than  it 

e  case  befcre  us, 
lavo  governments 
ipwards ;  and  ail 
ritain,  there  is  a 
tions,  peculiar  to 
le  larger  divisions 
smaller  commu- 
of  them  conduct- 
discretion.  But, 
ive  been  separate 
s  of  our  confede- 
diiiastrous  conse- 
,  in  the  State  of 
ir  their  own  laws, 
ed  States.  They 
that  State,  to  be 
er  the  protection 
snt,  which  I  never 
's  hands,  supports 
he  examination  of 
r  to  suffer,  from 
land  ;— to  hold  it 
7  duty,  and  every 
ivereignty,  though 

ties  may  become 
whites,  the  manner 
[B  of  the  most  dis- 


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93 

interested  men  in  our  country,  and  the  councils  of  the  wisest.     In  the 
mean  time,  let  us  hear  the  advice  of  Chancellor  Kent  on  the  subject. 

"When  the  time  shall  arrive  for  us  to  break  dovn  the  partition  wall  between  uj 
and  them,  and  tc  annihilate  the  political  existence  of  the  !"«''''»*  ""»^l°"'».'; J 
tribae,  1  trust  we  ehall  act  fairly  and  explicitly,  and  endeavour  t"  effect  it  with 
the  full  knowledge  and  assent  of  the  Indians  themselves,  and  with  the  most  scru- 
pulous  regard  to  their  weaknesses  and  prejudices,  and  with  the  entire  approba 
tion  of  the  government  of  the  United  States.  I  am  satisfied  that  such  a  course 
would  be  required  by  prudence,  and  would  become  necessary,  not  only  for  con- 
science' sake,  but  for  the  repuUtion  of  our  justice."  Johnson  i  Reports,  vol.  20, 
p.  717. 

The  learned  jurist  was  speaking  of  tha  small  tribes,  in  the  State  of 
New  York,  whose  domains  are  now  restricted  by  their  own  consent  to 
tracts  of  a  few  miles  square,  and  whoso  numbers  are  roduced  to  a  tew 
hundreds.     These  tribes,  having  resigned  many  attributes  of  sovereignty 
which  the  Cberokees  still  retain,  and  living  in  the  midst  of  a  crowded 
population,  may  possibly  find  it  for  their  interest  to  abdicate  the  sove- 
reignty, which  still  remains  to  them.     In  such  an  event,  the  chancellor 
lavs  it  down  as  indispensable,  that  the  government  of  New  York  should^ 
« endeavour  to  effect  the  change,  with  the  full  knowledge  and  assent  o\ 
the  Indians  themselves.'     This  is,  indeed,  one  of  the  first  dictates, 
which  would  be  obeyed  by  an  upright  and  honourable  mmd  :  but  how 
much  more  imperative  is  it  in  the  case  of  the  CherokCes,  who  number 
thousands  for  the  hundreds  of  Oneidas  and  Senccas ;— who  have  a  suf- 
ficient territory,  in  which  they  can  secure  themselves,  under  the  protect- 
ing laws  of  the  United  States,  from  molestation  on  the  par*  of  the 
whites  ;— who  have  a  regular  government  of  their  own,  suited  to  their 
habits,  their  condition,  and  their  wants ;— and  who  have  their  relations 
with  the  United  States  distinctly  marked  and  defined  by  vaiious  treaties. 
If,  however,  the  Cherokees  can  be  persuaded,  by  fair  and  honest  argu- 
ments, that  they  will  be  goiners  by  giving  up  their  sovereignty,  either 
now  or  fifty  years  hence,  let  their  consent  be  obtained.     Let  them 
always  be  made  to  feel,  that  they  are  free  agents ; — not  in  such  a  sense 
as  the  traveller  is  free,  when  he  delivers  up  his  purse,  with  a  pistol  at 
his  breast ; — but  as  truly  free  as  any  man,  or  body  of  men,  who  make  a 
contract  under  the  protection  of  law,  and  on  terms  of  perfect  recipro- 
city.    The  Cherokees  should,   especially  at  this  juncture,  bo  again 
assured,  thht  they  stand  behind  the  shield  of  the  law, — the  supreme  law 
of  the  land — which,  in  a  government  like  ours,  should  afford  a  defence 
not  less  perfect,  and  certainly  much  more  convenient,  than  could  be  af- 
forded by  a  cordon  of  150,000  bayonets,  or  a  wall  of  adamant  from  th« 
earth  to  the  skies. 

The  chancellor  says,  also,  that  this  change  should  be  effected,  (if  at 
all,)  "  with  the  most  scrupulous  regard  to  the  weaknesses  and  preju- 
dices" of  the  Indians.  He  would  not  justify  the  use  of  cold  and  unfeel- 
ing language,  such  as :  "  Indians  must  always  retire  from  the  march  of 
civilization.  It  is  in  vain  to  attempt  to  .save  ihem."  He  would  much 
sooner  lament  the  frauds,  and  impositions,  which  hr.ve  been  practised 
upon  them  by  profligate  and  interested  white  men,  and  the  deficiency  of 
benevolent  feeling  towards  them,  on  the  part  of  many,  who  would  by  no 
meana,  tolerate  fraud  or  oppression.    Justice  requires  that  it  sliould  b« 


i  ' 


94 

unid,  however,  that  most  of  the  legislatureB  of  the  older  Statei  framed 
lawa  for  the  protection  of  Indians,  with  a  most  benevolent  regard  to 
their  cood,  nnd  on  the  genuine  principles  of  Christianity. 

The  chiinccllor  says  again,  that  the  change  should  be  effected,  "with 
the  entire  approbation  of  the  government  of  the  United  States.  This 
change,  be  it  remembered,  had  reference  to  the  little  tribes,  in  the  btate 
of  New  York.  Yet  the  highest  law  character  in  the  State,  delivering 
nn  opinion  before  the  Senate,  sitting  as  the  highest  court  of  law  m  the 
State,  did  not  apprehend  an  impeachment  for  sacificmg  State  Rights, 
when  he  declared,  that  if  an  arrangement  should  be  made  on  this  sub- 
iect,  it  should  be  made  "  with  the  entire  approbation  of  the  goremment  of 
the  United  States."  And  the  Senate,  consisting  of  thirty  members,  or 
more,  from  all  parts  of  the  State,  supported  the  re«:ioning  of  t  >e  chan. 
cellor,  with  but  a  single  dissenting  vote.  IIow  different  a  spirit  is  here, 
from  that  which  prevails  in  Georgia  !  .   ,  .i»  „i,„„  .  .iin,. 

At  the  close  of  the  paragraph,  which  I  have  quoted,  the  clian.  ollor 
recommends  this  course,  not  only  as  the  most  prudent  course,  and  nc« 
only  for  conscience^  sake,  but  for  the  reputation  of  our  J"'^'^''-.jJ°: 
ever  fears  God,  or  regards  man  -.-whoever  possesses  an  enlightened 
conscience,  and  feels  his  accountability  to  his  Maker,  or  w'^hes  to  de- 
Lrve  the  confidence  and  respect  of  good  men,  and  the  ?'«  '  "f^  f  f J 
times  ;-such  a  man,  says  this  learned  judge  in  effect,  will  take  heed, 
that  he  deals  kindly  and  justly  by  the  Indians. 

Hamilton,  who  is  now  admitted,  by  all  pa.tios,  to  have  been  an  illus- 
triour^atesmin.  and  to  have  felt  deeply  for  »''«  honour  of  his  country, 
aaid  resoectine  treaties,  that  they  are  "  contracts  with  foreign  nations, 
w^ch  hTve  S  for^e  o  law.  but  derive  it/rom  the  obligations  of  good 
S"  [Federalist,  No.  75.]  He  reckoned,  as  -"^-^l^^^^^^' 
tions  of  those  who  were  to  make  treaties,  "  a  ntceand  «»£^  'fJJ?- 
lUvto  national  character^  These  qualifications  he  expected  to  find,  .n 
i  seSeTby  the  legislatures  of  the  several  States,  as  representatives 
Tthe  worth.  Se  dignify,  and  the  character  of  the  country,  m  the  highest 
l»mnch  of  our  national  legislature.  .1    .      v 

.  I??s  one  o  the  most  encouraging  signs  of  the  present  times,  hat  pub- 
lic men  are  made  to  feel  their  accountability  to  the  public,  and  their 
oblivion  to  bring  their  measures  of  state  withir^  the  rules  of  pnva  e 

.  I  regard  to  a  single  administration.     Ihis  de- 

rnToVarotitlSy^ZlU  be'made  by  the  P-P|-f  -ery 
country  •  and  if  rulers,  whether  kings  or  presidents,  parliaments  or 
coSgreLes"  perpetrate  ^cU  in  their  public  character,  which  would  be 
peEf  J  a%rivate  man,  they  will  be  P^°P°""^f.  «",!«*,  ^*,"J'f 
Tn  cases  of  great  importance,  if  thus  pronounced  guilty  by  the  voice  ol 
iispassTonatf  and  intelligent  men.  their  names  will  be  consigned  to 

'"  Thl"great  principles  of  morality  are  immutable.     They  bind  nations. 
Commentaries. 


99 


ler  Statci  frnmeJ 
evolent  regard  to 
ity. 

le  effected,  "  with 
!d  States."  This 
ribes,  in  the  State 
State,  delivering 
)urt  of  law  in  the 
ing  State  Rights, 
node  on  this  sub- 
'  the  gottmment  of 
hirty  uiembers,  or 
ning  of  the  chan' 
nt  a  spirit  is  here, 

id,  the  chancollor 
course,  and  "  not 
'  justice."  Who- 
's an  enlightened 
,  or  wishes  to  de- 
I  gratitude  of  after 
ct,  will  take  heed, 

lave  been  an  illus- 
jur  of  his  country, 
111  foreign  nations, 
bligationa  of  good 
ong  the  qualifica- 
1(2  uniform  aemibi' 
expected  to  find,  in 
,  as  representatives 
intry,  in  the  highest 

;nt  times,  that  pub- 
)  public,  and  their 
lb  rules  of  private 
iference  to  a  single 
jtration.  This  de- 
he  people  of  every 
Its,  parliaments  or 
r,  which  would  be 
need  gu^y;  and, 
lilty  by  the  voice  of 
U  be  consigned  to 

They  bind  nations, 

dividuals.     On  this 

Chancellor  Kent's 

(5  Ifcw  from  that  of  eth- 
enU  are  not  a*  strictly 


bound  by  th«  obliKationi  of  truth,  juttiee,  and  humanitr,  in  reletion  to  other  pow- 
eri,  a»  they  are  in  tkfl  management  of  their  own  local  concerns.  States,  or  bo- 
dies politic,  are  to  be  coniiuerud  as  moral  persons,  having  a  public  will,  capable 
and  fttts  to  do  right  and  wrong,  inasmuch  as  they  are  collections  of  individuals, 
each  of  whom  carries  with  hir^  into  the  service  of  the  community,  the  same  bind- 
ing law  of  morality  and  reli^  <  which  ought  to  control  his  conduct  in  private 
life."     Vol.  1.  p.  2. 

»Tho  law  of  nations,  so  far  as  it  is  founded  or.  principles  of  natural  law,  ii 
equally  bindinj;  in  every  age,  and  upon  all  mankind.  But  the  Christian  nation! 
of  Europe,  and  their  descendants  on  this  side  of  the  Atlantic,  by  Iho  vast  superi- 
ority of  their  t  nu.nents  in  arts,  and  science,  and  commerce,  as  well  as  in  policy 
and  government ;  and,  above  all,  by  the  brighter  light,  the  more  certain  truths, 
and  the  more  definite  sanctions,  which  Christianity  has  communicated  to  the  ethi- 
cal jurisprudence  of  the  ancients,  have  establiehud  a  law  of  nations  peculiar  to 
themselves."    p.  3. 

Christianity,  then,  is  the  basis  of  the  present  law  of  nations. 

Another  learned  judge  has  recently  duciurcd,  on  a  public  and  solemn 
occasion,  that  Christianity  is  a  part  of  the  common  law. 

"  One  of  the  beautiful  boasts  of  our  municipal  jurisprudence  is,  that  Christianl 
ty  is  a  part  of  the  common  law,  from  v/hich  it  seeks  the  sanctions  of  its  rights,  and 
by  which  it  endeavours  to  regulato  its  doctrines.  And,  notwithstanding  the  spe- 
cious objection  of  one  of  our  distinguished  statesmen,  the  boast  is  as  true  as  it  is 
beautiAil.  There  never  has  been  a  period,  in  which  the  common  law  did  not  recog- 
nize Chritlianity  at  lying  at  tti  foundationt."  Judge  Story's  Inaugural  Di«' 
course,  p.  20. 

If  Christianity  is  the  basis  of  the  law  of  nations  and  of  the  common 
law  of  the  United  States,  it  surely  is  nut  out  of  place,  though  it  should 
be  unnecessary,  to  remind  our  lawgivers  and  judges,  that  one  of  the 
great  maxims  of  Christianity,  for  the  regulation  of  intercourse  among 
men,  is,  that  we  should  do  to  others  whatever  we  would  desire  that  they, 
in  lUce  circumstances,  should  do  to  us.  Let  the  people  of  Georgia,  and 
the  people  of  the  United  States,  seriously  reflect,  whether  they  should 
be  willing  to  receive  the  same  treatment,  with  which  the  Cherokees 
are  threatened.  Would  they  be  content  to  go  into  exile,  or  to  come 
under  the  laws  of  a  foreign  state,  with  the  studied  premonition  that 
they  could  be  neither  witnessed,  nor  parties,  in  a  court  of  justice  ? 
Let  the  appeal  be  made  to  conscience  ;  und  unless  the  conscience  be 
buried  under  impenetrable  ignorance,  or  seared  as  with  u  hot  iron,  the 
answer  cannot  be  doubtful. 


No.  XXIV. 

Plan  for  the  removal  of  the  Indians — Objections  to  it — invented  for  the  benefit  of 
the  whites — It  speaks  too  much  of  generosity,  too  little  of  justice— It  is  visiona- 
ry—The Indians  unwilling  to  remove — No  good  place  can  be  found  for  them — 
Government  cannot  fulfil  its  promises — There  can  be  no  guaranty — Privations 
of  a  removal,  and  quarrels  afterwards — Where  shall  they  remove  next  ? — If  re- 
moved, the  Indiana  will  not  confide  in  the  government — Conciusion. 

I  have  now  arrived  at  my  closing  number  ;  in  which  I  propose  to  ex- 
amine the  plan  for  the  removal  of  the  Indians  beyond  the  Mississippi. 

This  plan,  so  far  as  its  principles  have  been  developed  and  sanctioned 
by  the  government,  is  as  follows  : — 

Congress  will  set  apart  a  tract  of  country  west  of  the  Arkansas  ter- 


n 


^^ 


..  -  «*j..n«  IRQ  milei  lone  and  100  miles  broad,  and  will  guaranty 
IS  S:Sa^sSn-  oAndiana.  Uponthi.  tract  will  be  collected 
It  an  a  pen;«»"»'  ^  resident  in  different  States  and  Territories.  The 
U„Tj;^lUe  dtded  aln«  ^  and  individuals,  as  Congress  shall 

iTrlt     TJe   ntn,  thus'coUected.  will  be  governed  by  white  rulers  ; 
E.  by  agent,  of  the  United  States  ;  till  the  time  sbal  arrive,  when 
IhPv  can  be  safely  trusted  with  the  government  of  themselves.    At  pre- 
sent they  are  to  be  treated  as  children,  and  guarded  w  th  truly  paternal 
iXitude      The  United  States  w.ll  bear  the  expense  of  a  removal  ;  and 
S  Ssh  impkments  of  agriculture,  the  mechanical  arts  school,  and 
Tthor  means  of   civilization.      Intruders  will  be  excluded.     Ardeni 
sSrits  will  not  be  allowed  to  pass  the  line  of  demarkation      And.  a.  a 
conse^rence  of  all  these  kind  and  precautionary  measures,  it  is  supposed 
Sat  the  Indians  will  rise  rapidly  in  various  respects  ;  that  they  w.ll  be 
contented  and  happy  In  their  new  condition  ;  and  that  the  government 
wTm  r?t  and  rSe  the  appellation  of  benefactors    .  This  «  the  plan  ; 
TnH  the  following  considerations  appear  to  my  mmd  in  the  light  of  cb- 

^''^^'Tt  is  a  sIITpicious  circumstance,  that  the  wishes  and  supposed  ia- 
tereiu  o   tJe  wSltes.  and  not  the  benefit  of  the  Indians,  afford  alUbe 
Imnulse  under  which  Georgia  and  her  advocates  appear  to  act.     The 
iLunTare  in  t^e  way  of  the  whites ;  they  must  be  removed  for  the 
IrScation  of  the  whites  ;  and  thi.  is  at  the  bottom  of  the  plan      But 
ff  the  CheJokees  had  been  cheerfully  admitted,  by  the  inhabitants  of 
Georgia.  rpSess  an  undoubted  right  to  the  permanent  occupation  of 
Sountry;  and  if  this  admission  were  made  in  terms  of  kindness, 
and  with  a  V  ew  to  g<KMl  neighborhood,  according  to  Mr.  Jefferson  s 
pron^le  embodied  in^  treat/j-if  such  h.d  been  U,e  .Uale  ofj.ngs 
we  should  have  heard  nothing  of  the  p.aieit  solieme.    Is  it  ikely  tuat 
Tolan  conceived  in  existing  circumstance-.,  and  with  ihB  sole  view  of 
SLtouSteou.  and^nreasonable  claims,  can  be  beneficial  m 
ii  Stion  uiSn  the  Indians  ?    A  very  intelligent  member  of  Con- 
SjTfrom  thHest  declared  to  the  writer  of  these  nuD:^ers,  that  the 
Knof^e  parties  most  interested  was.  to  destroy  the  indians,  and 
not  to  save^em.     I  do  not  vouch  for  the  accuracy  of  this  opinion  ;  ^t 
?°L  an"  pinion  not  confined  to  one,  or  two.  or  twenty  of  our  pubhc 
nm     At  any  rate  there  is  no  uncharitableness  m  saying,  that  Georgw 
5  actuated  b/  r^sire  to  get  the  land*  of  tlu  Cherokee. ;  for  she  openly 
^vJws  i       As  mUe  can  itle  doubted,  that  the  plan  in  question  >s  suited 
to  accomplish  her  desires.     It  is  not  common,  for  a  party  deeply  mter- 
«teS?rdeJise  the  most  kind  and  benevolent  way  of  treatmg  another 
n«Ttv  whose  interests  lie  in  a  different  direction.  „         u    r 

^TC  plan  ia  te  be  distrusted,  because  its  advocates  talk  much  of 
futere  geneSy  and  kindness  ;  but  say  nothing  of  the  P^eaent  obliga- 
tS  of  honor,  truth,  and  justice.  What  should  we  say,  m  pnvate  life, 
■  to  i  man.  who  refused  to  pay  his  bond,  under  hand  and  sealr-a  bond, 
whirhe  dfd  nordispute.  LI  which  he  had  acknowledged  b|Jorcw^ 
nM^s  a  hundred  times  over,— and  yet  should  ostentatiously  profess 
hSf  diSXd  to««ake  a  great  many  handsome  preaente  to  the  obhgee. 
if^obligWwould  only  be  lo  discreet  aa  to  deliver  "P  tjeb^! 
Would  it  not  be  pertinent  to  say.  "  Sir,  UjuH  before  yey  an  gmunm , 
-^rrt  pay  your  bond,  tnd  talk  of  preBWits  afterwards. 


and  will  guaranty 
t  will  be  collected 
Territories.    The 
IS  Congress  shall 
I  by  white  rulers  ; 
shall  arrive,  when 
mselves.    At  pre- 
with  truly  paternal 
of  a  removal  ;  and 
tl  arts,  schools  and 
excluded.     ArderU 
Ication.     And,  ai  a 
jres,  it  is  supposed 
;  that  they  will  be 
at  the  government 
This  is  the  plan ; 
in  the  light  of  ob- 

I  and  supposed  in- 
ians,  afford  all  the 
ppear  to  act.     The 
e  removed  for  the 
1  of  the  plan.     But 
r  the  inhabitants  of 
anent  occupation  of 
I  terms  of  kindness, 
J  to  Mr.  Jefferson's 
I  the  state  of  things, 
ne.    Is  it  likely  that 
ith  the  sole  view  of 
tan  be  beneficial  in 
nt  n.«5mber  of  Con- 
se  nun:^erB,  that  the 
troy  the  Indians,  and 
of  this  opinion  ;  but 
twenty  of  our  public 
saying,  that  Georgia 
\Tceet ;  for  she  openly 
in  question  is  suited 
a  party  deeply  inter- 
r  of  treating  another 

Ivocates  talk  much  of 
)f  the  present  obliga- 
ire  say,  in  private  life, 
nd  and  seal, — a  bond, 
owledged  before  wit- 
ostentatiously  profess 
tresenta  to  the  obligee, 
deliver  up  the  bond? 
ore  ym  art  gtMnma ; 
irdfl." 


Let  the  government  of  the  United  States  follow  the  advicb  ijiven  by 
Chancellor  Kent  to  the  State  of  New  York.  Let  our  public  functiona- 
ries say  to  ^he  Chcrokecs  ;  "The  (fnited  States  nre  bound  to  you. 
The  stipulations  are  plain ;  and  you  have  a  perfect  right  to  demisnd 
their  literal  fulfilment.  Act  your  own  judgment.  Consult  your  own 
interests.  Be  assured  that  wo  shall  never  violate  treaties."  If  this 
language  were  always  used  ;  if  acknowledged  obligation*  were  kept  in 
front  of  every  overture  ;  there  would  he  leas  suspicion  attending  advicS, 
professedly  given  for  the  good  of  the  Indians.  It  is  not  my  province  to 
question  the  motives  of  individuals,  who  advise  the  Cherokees  to  re- 
move. No  doubt  many  of  these  advisers  are  sincere.  Some  of  them 
are  officious  ;  and  should  beware  how  they  obtrude  thoir  opinions,  in  a 
case  of  which  they  are  profoundly  ignorant,  and  in  a  manner  calculated 
only  to  weaken  the  righteous  cause.  All  adviser*,  of  every  class,  should 
begin  their  advice  with  an  explicit  admiaaion  of  present  obligationt, 

3.  The  plan  in  question  appears  to  me  entirely  visionary.     There 
has  been  no  experience  among  men  to  sustain  it.     Indeed,  theoretical 
plans  of  government,  even  though  supposed  to  be  founded  on  experi- 
ence gained   in   different  circumstances,  have  uniformly  and   utterly 
failed.     So  wise  and  able  a  mnn  as  Mr.  Locke  was  totally  incompe- 
tent, as  the  experiment  proved,  to  form  a  government  for  an  Americon 
colony.     But  what  sort  of  a  community  is  to  be  formed  here?     Indians 
of  different  tribes,  speaking  different  languages,  in  different  states  of 
civilization,  are  to  be  crowded  together  under  one  government.     They 
have  all  heretofore  lived  under  the  influenca  of  their  hereditary  cus- 
toms, improved,  in  some  cases,  by  commencing  civilization  ;  but  they 
are  now  to  be   crowded  together,  under  a  government  unlike  any 
other  that  ever  v  as  seen.     Whether  Congress  is  to  be  employed  in  di- 
gesting a  municipal  code  for  these  congregated  Indians,  and  in  mend- 
ing it  from  session  to  session  ;  or  '.vhether  the  President  of  the  United 
States  is  to  be  the  sole  legislator  ;  or  whether  the  business  is  to  b« 
delegated  to  a  civil  or  military  prefect,  we  are  not  told.     What  is  to 
be  the  tenure  of  land  ; — what  the  title  to  individual  property  ; — what 
the  rules  of  descent ; — what  the  modes  of  conveyance  ; — what  the  re- 
dress for  grievances  ; — theso  and  a  thousand  other  things  are  entirely 
unsettled.     Indeed,  it  is  no  easy  matter  to  settle  them.     Such  a  nian 
as  Mr.  Livingston  may  form  a  code  for  Louisiana,  though  it  requires 
uncommon  talents  to  do  it.     But  ten  such  men  as  he  Could  nut  form  a 
code  for  a  heterogeneous  mixture  of  Indians. 

If  this  embarrassn^ent  were  removed,  and  a  perfect  code  of  aborigi- 
nal law  were  formed,  how  shall  suitable  administrators  be  found  ?  Is 
it  probable  that  the  agents  and  sub-agents  of  the  United  States  will 
unite  all  the  qualifications  of  Solon  and  Howard  ?  Would  it  be  strange 
if  some  of  them  were  indolent,  unskilful,  partial,  and  dissolute  ?  and  if 
the  majority  were  much  more  intent  on  the  emoluments  of  office,  thaa 
on  promoting  the  happiness  of  the  Indians  ?  One  of  the  present  In- 
dian agents,  a  very  respectable  and  intelligent  man,  assured  me,  that 
the  plan  for  the  removal  of  the  Indians  was  altogether  chimerical,  and, 
if  pursued,  would  end  in  their  destruction.  He  may  be  mistaken  ;  but 
hi*  personal  experience  in  relation  to  the  subject  is  much  greater  than 

13 


>.-1';l,-niri'>'Ti-'- 


"f^ 


98 

that  of  any  perton,  who  hat  Uta  engaged  in  forming  or  recommending 

*''VThfl  four  southwestern  tribes  are  unwilling  to  remove.     They 
ouKht  not  to  bo  confounded  with  the  northern  Indian^  as  they  are  in 
Tciy  different  circumstances.     The  Cherokee,  and  ^^hoctaws  are  np- 
'dly  improving  their  condition.     The  Chickasaws  hava  begun  to  fclluw 
n  the  lame  iourw,.     These  tribes,  with  the  Creeks,  are  attached  to 
Sir  nat^e  soil,  and  very  reluctant  to  leave  it.     Of  th.s  the  evidence 
U  mosrabundPnl.     No  per^in  acquainted  with  the  actual  state  ol  ihing- 
".^deny.  that  the  feelings  of  the  great  mass  of  these  people,  apart 
from  extraneous  inHuence,  are  decidedly   and  strong  y  opposed  to  a 
Removal      Some  of  them,  when  pressed  upon  the  subject,  may  remain 
•ilent.     Othen,.  knowing  how   little  argument    avails  against  power. 
SLv  fiintly  a,.swer,  that  they  will  go,  ./  Ihey  mu,t,  and  ./  a  suitable 
^e^n  be  found  for  th^m.     At  the  very  moment,  when  they  are  say- 
CfhrtheV  will  add  their  strong  conviction,  that  "«  7'«''»«  P'^^ 
can  be  found.     In  a  word,  these  tribes  will  not  remove,  unless  by  com- 
Dulsion.  or  in  the  apprehension  of  force  to  be  used  hereafter. 
•^5.  The  Indians  asliert.  that  there  is  not  a  sufficient  quantity  of  good 
land,  in  the  contemplated  tract,  to  accommodate  half  'h^T  F"*f 
numbers;  to  say  noUiing  of  the  other  tribes  to  be  thrust  into  their 
comp!"y      Even  the  agenU  of  the  United  States,  who  have  been  em- 
Jloyed  with  a  special  view  to  make  the  scheme  popular,  "J""}  » '»» 
Siereisa  deficiency  of  wood  and  water.     Without  wood  Jor  fences 
and  buildings,  and  for  shelter  again.t  the  furious  northwestern  blasts  of 
.    iinter.  VJimiian,  canriot  be  <5.mfortable      Without  running  stream- 
they  can  never  keep  live  stock ;  nor  could  they  easily  *»'«  ^e^  -"^ 
cisterns  for  the  use  of  Uieir  famihes.    The  vast  prairies  of  the  west  wiU 
d  mate ly  be  inhabited.     But  it  would  require  all  the  jvealth.  the  en. 
terprise.andthe  energy,  of  Anglo-Americans,  to  '""'f*  * .  P^'P*'""" 
settlement  upon  them.     Nor.  if  the  udgment  of  travellers  is  to  be  re- 
Sed  Z  wUl  such  a  settlement  he  made,  Ull  the  pressure  of  popuktion 
render^  it  necessary.     The  most  impartial  accounts  of  the  counjn^;  J> 
the  west  of  Missouri  and  Arkansas,  unite  in  representing  it  as  «»>?""«- 
less  prairie,  with  narrow  stripes  of  forest  trees,  on  the  margin  ot  nvers. 
The  good  lind,  including  all  that  could  be  brought  into  use  by  partially 
civUized  men,  is  sUted  to  be  comparatively  small.  _ 

6.  Government  cannot  fulfil  its  promises  to  emigrating  In«l'8n»;  " 
is  incomparaWy  easier  to  keep  intruders  from  the  Chewkees  ^here 
bey^7«e.  than  it  will  be  to  exclude  them  from  »«•«"««[,«»""  'y- 
The  present  neighbours  of  the  Cherokees  are,  to  a  «on"<'«",*>l«  "}?"* 
men  Sf  some  property.  respecUble  agricultur«ts,  who  would  not  thmk 
of  any  encroachment,  if  the  sentence  of  the  law  were  pronounced  firmly 
in  fa/our  of  the  occupanw  of  the  eoil.  Stealing  from  the  Indians  is  by 
no  mean,  so  common,  as  it  was  fifteen  years  ago.  One  'e-^"*"  »•/;;* 
the  worst  class  of  white  settlers  has  migrated  farther  w«V  .^f  "^ 
«Uted,  even  now.  to  hover  around  the  emigrant  Creeks,  like  ^"»"r«8 
It  may  be  laid  down  as  a  maxim,  that  so  long  as  Ind'a"?  Pos^**^""^ 
thing,  which  is  an  object  of  cupidity  to  the  whites,  they  will  be  exposed 
to  ^e  frauds  of  interested  speculators,  or  the  intrusion  of  idle  ami 
worthless  vagranU :  and  the  farther   removed  Indians  are  from  tlie 


ir  recommending 

I  remove.     They 
dy  as  they  are  in 
hoctaws  arc  rap- 
I  begun  to  Golluw 
,  are  attached  to 
thic  the  evidence 
ual  state  of  things 
ese  people,  apart 
l\y  opposed  to  a 
}ject,  oiajr  remain 
Is  against  power, 
and  if  a  suitable 
rhen  they  are  say- 
no  suitable  place 
e,  unless  by  coin- 
reafter. 

I  quantity  of  good 
lalf  their  present 

thrust  into  tbeir 
)o  have  been  em- 
ipular,  admit  that 

wood  for  fences 
thwestern  blasts  of 
t  running  streams, 
lily  dig  wells  and 
Bs  of  the  west  will 
lie  wealth,  tlie  en- 
nake  a  prosperous 
vellers  is  to  be  re- 
isure  of  population 
of  the  country,  to 
iting  it  as  a  bound- 
e  margin  of  riyem. 
ito  use  by  partially 

rating  Indians.  It 
J  Cherokees  ^here 
n  the  new  country. 
;onsiderable  extent 
i)o  would  not  think 
pronounced  firmly 
tn  the  Indians  ia  by 
One  redson  is,  that 
r  wesC.  They  are 
eeks,  like"  vultures. 
Indians  possess  any 
hey  will  be  exposed 
trusion  of  idle  and 
iians  are  from  the 


notice  of  the  government,  the  greater  will  be  their  exposure  to  the  arts, 
or  the  violence,  of  selfish  and  unprincipled  men.  .      ,,  .     . 

Twenty  years  hence,  Texas,  whether  it  shall  belong  to  the  United 
States  or  not,  will  have  been  settled  by  the  descendants  of  Anglo- 
Americans.  Thp  State  of  Missouri  will  then  bo  populous.  There  will 
be  gre;  i  roads  through  the  new  Indian  country,  ami  caravans  will  \m 

Erasing  and  repassing  in  many  directions.  The  emigrant  Indiana  will 
e  denalionalixed,  and  will  have  no  common  bond  of  union.  Will  it 
be  possible,  in  such  circumstances,  to  enforce  the  laws  against  intruders. 
7.  If  the  Indians  remove  from  their  native  soil,  it  is  not  possible  that 
they  should  receive  a  satisfactory  guaranty  of  a  new  country.  If  a 
guaranty  is  professedly  made  by  a  compact  called  a  treaty,  it  will  b« 
done  at  the  very  moment  that  treaties  with  Indians  are  declared  not  to 
be  bindin",  and  for  the  very  reason  that  existing  treaties  are  not  strong 
enough  to  bind  the  United  States.  To  what  confidence  would  such  an 
engagement  be  entitled  ?  ,    ,     c      .      e 

It  is  now  pretended  that  President  Washington,  and  the  Senate  of 
1790,  had  no  power  to  guaranty  to  Indians  the  lands  on  which  they 
were  bom,  and  for  which  they  were  then  able  to  contend  vigorously,  at 
the  muzzle  of  our  gnns.  Who  can  pledge  himself,  that  it  will  not  bt> 
contended,  ten  years  hence,  t!iat  President  Jackson,  and  the  Senate  of 
1030,  had  no  constitutional  jiower  to  set  apart  territory  for  the  perma- 
nent residence  of  the  Indians  ?  Will  it  not  then  be  asked,  Where  is  the 
clause  in  the  constitution,  which  authorized  the  establishment  of  a  new 
and  anomalous  government,  in  the  heart  of  North  America  ?  The  con- 
stitution looked  forward  to  the  admission  of  New  States  ir  to  the  Union  ; 
but  does  it  say  any  thing  about  Indian  States  ?  Will  the  men  of 
1840,  or  1850,  be  more  tender  of  the  reputation  of  President  Jackson, 
than  the  men  of  the  present  day  are  of  the  reputation  of  President 
Washington  ?  Will  they  not  say,  that  the  pretended  treaty  of  1830,  (if 
a  treaty  should  now  be  made,)  was  an  act  of  sheer  usurpation  ?  that  it 
was  known  to  be  such  at  the  time,  and  was  never  intended  to  be  kept  ? 
that  every  man  of  sense  in  the  country  considered  the  removal  of  1830, 
to  be  one  of  the  few  steps,  necessary  to  the  utter  extermination  of  the 
Indians  ?  that  the  Indians  were  avowedly  considered  as  children,  and 
the  word  treaty  was  used  as  a  plaything  to  amuse  Ihem,  and  to  pacify 
grown  up  children  among  the  whites  ? 

If  the  design  is  not  to  be  accomplished  by  a  treaty,  but  by  an  act  of 
Congress,  the  question  recurs.  Whence  did  Congress  derive  the  consti- 
tutional power  to  make  an  Indian  State,  150  miles  long  and  100  roiWs 
broad,  in  the  heart  of  this  continent  ?  Besides,  if  Congress  has  the 
constitutional  power  to  pass  such  an  act,  has  it  not  the  power  of  repeal- 
ing the  act  ?  Has  it  not  also  the  power  of  making  a  new  State  of 
whites,  encircling  this  Indian  community,  and  entitled  to  exercise  the 
same  power  over  the  Indians,  which  the  States  of  Alabama  and  Missis- 
sippi now  claim  the  right  of  exercising  over  the  four  southwestern 
tribes  ?  Will  it  be  said,  that  the  contemplated  Indian  community  will 
have  been  first  established,  and  received  its  guaranty,  and  that  therefore 
Congress  cannot  inclose  the  Indians  in  a  new  State  ?  Let  it  be  remem- 
bered, that  the  Creeks  and  Cherokees  received  their  guaranty  aoout 
thirty  years  before  the  Stole  of  Alabama  came  bto  existence;  and  yet 


^.y«r-»a^TT 


k 


100 

that  8ute  claims  the  Inditni  within  iti  chartered  limita,  aa  being  under 
its  proper  iuriMiiction;  nnd  ho.  already  begun  to  enforce  the  ciajm. 
L#t  not  the  government  trifle  wi<h  the  word  gunranty.  If  the  Indiana 
are  removed,  let  it  be  said,  in  on  open  and  manly  tone,  that  they  are 
removed  becauae  we  have  the  power  to  remove  thein,  and  there  la  a  po- 
litical reason  for  doioK  it  ;  and  that  they  will  bo  removed  again,  when- 
ever the  whites  demand  their  removal,  in  a  atyle  sufficiently  clamoroua 
and  imperious  to  make  trouble  for  the  government. 

8.  The  constrained  migration  of  60,000  souls,  men,  women,  and 
children,  most  of  them  in  circumstances  of  deep  poverty,  must  be  at- 
tended with  much  suffering.  J  .11  ;- 

9.  Indiana  of  different  tribes,  speaking  different  Innguages,  and  all  in 
a  state  of  vexation  and  discouroRcment,  would  live  on  bod  terma  witn 
each  other,  and  quarrels  would  be  inevitable. 

10.  Another  removal  will  soon  bo  necessary.  If  the  emigrants  oe- 
come  poor,  and  nro  transformed  into  vagabonds,  it  will  »>«  f '^l^nc' 
enouflh,  that  no  benevolent  treatment  can  save  them,  and  it  will  be  aaid 
thev  mny  as  weil  be  driven  beyond  the  Rocky  Mountains  at  once.  U 
they  live  comfortably,  it  will  prove,  that  five  times  as  many  white 
people  might  live  comfortably  in  their  places.  Twenty-five  years  hence, 
there  will  probably  be  4,000,000  of  our  population  west  of  the  Missia- 
aippi,  and  fifty  years  hence  not  h«  than  1 5,000,000  By  that  time,  the 
pJeaaure  upon  the  Indians  will  be  much  greater  from  the  bo»ndleM 
prairi'-s,  which  must  ultimately  be  subdued  and  inhabited,  than  it  would 
ever  have  been  from  the  borders  of  the  present  Cherokee  country. 

1 1  If  existing  treaties  are  not  observed,  the  Indiana  can  have  no 
confidence  in  the  United  States.  They  will  consider  themselves  aa 
paupera  and  mendicants,  reduced  to  that  condition  by  acts  of  grosa  op- 
pression, and  then  taken  by  the  government,  and  stov.jd  away  in  a 

crowded  workhouse.  ,  .     .       .  .  .  u-  «f  Tn 

12.  The  moment  a  treaty  for  removal  is  signed  by  any  tribe  ot  In- 
dians, on  the  basis  of  the  contemplated  plan,  that  moment  such  tribe  la 
denalimalized ;  for  the  essence  of  (he  plan  is,  that  all  the  tribes  shall 
come  under  one  government,  which  is  to  be  administered  by  wliitea. 
There  will  be  no  party  to  complain,  even  if  the  pretended  treaty  shoiild 
be  totally  disregarded.  A  dead  and  mournful  silence  will  reign  ;  lor 
the  Indian  communities  will  have  been  blotted  out  forever.  Individuala 
will  remain  to  feel  that  they  are  vassals,  and  to  sink  unheeded  to  de- 
spondency, despair,  and  extinction.  .„  ^  .  ,.  *  ku«« 
But  the  memory  of  these  transactions  will  not  be  forgotten.  A  bitter 
roll  will  be  unfolded,  on  which  Mourning,  Lamentation,  and  Woe,  to  tM 
people  of  the  United  StaUa  will  be  seen  written  in  characters,  wbicli  no 

eye  can  refuse  to  see.  »  .     „  , .  »<•         _.u— 

Government  has  arrived  at  the  bank  of  the  Rubicon.  "  oiir  ruiera 
now  stop,  they  may  save  the  country  from  the  charge  of  bad  faitn.  ii 
■  Uiey  proceed,  it  will  be  known  by  all  men,  that  in  a  plain  case,  without 
■ny  plaasible  plea  of  necessity,  and  for  very  weak  and  unsatisfactory 
Sns,  the  great  and  boasting  Republic  of  the -United  States  of  Nor  h 
America,  incurred  the  guiU  of  violating  treaties;  and  *hatthi»  guilt 
was  incurrwl  when  the  subject  waa  fairly  before  the  eyes  of  the  Amen- 


..itfiiXH^'^iii 


"«!»r 


101 


,  ai  b«ing  und«r 
force  the  cinini. 
If  the  Indiana 
nc,  tliat  they  are 
in<i  there  ia  a  po* 
ived  again,  when- 
ciently  clamoroua 

ten,  women,  and 
crty,  muat  be  at- 

guages,  and  all  in 
>n  bad  terma  with 

the  emigrants  be- 
will  be  evidence 
and  it  will  be  aaid 
itains  at  once.     If 
B«  as  many  white 
ly-five  years  hence, 
west  of  the  Missia- 
By  that  time,  the 
rom  the  boundleaa 
ited,  than  it  would 
okpe  country, 
dians  can  have  no 
der  themselves  na 
y  acts  of  gross  op- 
stor^-'d  away  in  a 

by  any  tribe  of  In- 
jment  such  tribe  ia 
all  the  tribes  shall 
nistered  by  whites, 
ended  treaty  should 
nee  will  reign  ;  for 
irever.  Individuals 
ik  unheeded  to  de- 

brgotlen.  A  bitter 
on,  and  Woe,  to  the 
haracters,  wbicb  no 

icon.     If  our  rulera 

ge  of  bad  faith.  H 
plain  case,  without 
and  unsatisfactory 

ited  States  of  North 
and  that  thia  guilt 

I  eyei  of  the  Ameri- 


can community,  and  had  attracted  more  attention  than  a.iy  other  public 
measure  lince  the  close  uf  the  last  war. 

In  one  of  the  sublimust  portions  of  Divine  Revelation,  the  following 
words  are  written  : 

Curted  Im  he,  that  remoeeth  hit  neighbour's  landmark :  and  all  the 
people  thall  aay.  Amen. 

Curted  he  he,  that  makelh  the  blind  to  wander  out  of  the  way  ;  and 
dU  the  people  ^nall  tay,  Amen. 

Curted  be  he  that  pereerteth  the  judgment  of  the  ttranger,  fatherlett, 
and  widow  ;  and  all  the  people  thall  tay.  Amen. 

Is  it  possible  that  our  national  rulers  shall  be  willing  to  expo^o  them- 
selves  and  their  country  to  these  curses  of  Almighty  God  ?  CursCk  ut- 
tered to  a  people,  in  circumstances  not  altogether  unlike  our  own  ? 
Cursea  reduced  to  writing  by  the  inspired  lawgiver,  for  the  terror  and 
warning  of  all  nations,  and  receiving  the  united  and  hearty  Amen  of  all 
people,  to  whom  they  have  been  made  known  ? 

It  ia  now  proposed  to  rfmore  (he  landmarkt,  in  every  aense  ;— to  die- 
regard  territorial  boundaries,  definilely  fixed,  and  for  many  years  re- 
spected ;— io  disregard  a  most  obvious  principle  of  natural  justice,  in 
accordance  with  which  the  possessor  of  property  is  to  hold  it,  till  some 
one  claims  it,  who  has  a' better  right ;— to  forget  the  doctrine  of  the 
law  of  nations,  that  engagements  with  dependent  allieit  arc  as  rigidly  to 
be  observed,  as  stipulations  between  communities  of  equal  power  and 
sovereignty  ; — to  shut  our  ears  to  the  voice  of  our  own  tages  of  the  law, 
who  say,  that  Indians  have  a  right  to  retain  potaettion  of  their  land,  and 
to  uae  it  according  to  their  ditcretion,  antecedently  to  any  positive  com- 
pacU  ;  and,  finally,  to  dishonor  Washington,  the  Father  of  hia  country, 
— to  stultify  the  Senate  of  the  United  States  during  a  period  of  thirty- 
aeven  years, — to  burn  150  documents,  as  yet  preserved  in  the  archives 
of  State,  under  the  denomination  of  treaties  with  Indians,  and  to  tear 
out  sheets  from  every  volume  of  our  national  statute-book  and  scatter 
them  to  the  winds. 

Nothing  of  this  kind  has  ever  yet  been  done,  certainly  not  on  a  large 
scale,  by  Anglo-Americans.  To  us,  as  a  nation,  it  will  be  a  new  thing 
under  the  sun.  Wo  have  never  yet  acted  upon  the  principle  of  seizing 
the  lands  of  peaceable  Indians,  and  compelling  them  to  remove.  We 
have  never  yet  declared  treaties  with  them  to  be  mere  waato  paper. 

Let  it  be  taken  for  granted,  then,  that  law  will  preeail.  "  Of  law," 
says  the  judicious  Hooker,  in  strains  which  have  been  admired  for  their 
beauty  and  eloquence  ever  since  they  were  written, — "  Of  law  there  can 
be  no  less  acknowledged,  than  that  her  seat  is  the  bosom  of  God  ;  her 
voice  the  harmony  of  the  world.  All  things  in  heaven  and  earth  do  her 
homage  ;  the  very  least  as  feeling  her  care,  and  the  greatest  as  not  ex- 
empted from  her  power.  Both  angels  and  men,  and  creatures  of  what 
condition  soever,  each  in  different  sort  and  order,  yet  all  with  uniform 
consent,  admiring  her  as  the  mother  of  tlieir  peace  and  joy." 


'i 


■ 


I 


APPENDIX. 


THE  BCCRETARY  OF  WAR  TO  THE  CHEROKEE  DELEOATrON. 

DurAHiitHT  Of  VV*ii,  AniL  10, 18W. 

To  Mettra.  John  Rot;  Richard  Taylor,  Edvard  Gunter,  and  WUliam 
S.  Coodt/,  Cherokee  Delegation. 

FiiUNDi  »«o  B.oTnrmt  :  Your  lottfr  of  tha  I7lli  of  Febtuir>-,  addrewed  to  the 
l4te  8«cr.Ury  of  W.r.  hw  b«.n  bro.iRht  to  the  i.olico  of  thi.  department,  .inc. 
tha  corarauniction  made  to  you  on  lh«  tUh  in.t. ;  and  ha»mn  coRV.r.ed  fredf 
•nd  full»  with  the  Pr«.ident  of  tha  United  State.,  I  am  directed  b/  h.m  to  submit 
the  following  a.  tlie  view,  which  are  entertained,  in  reference  to  the  .ubjecU  which 
Tou  have  aubmitted  for  con.idoration.  .     ,,  /..l    i  ni..  ir«i 

You  .tftte  that  "  the  L«((-.lature  of  Georgia,  in  defiance  of  the  law.  ?f'.h«  Uni- 
ted SUt..,  and  th.mo.t  Solemn  treatie,  exi.li.ur."  have  "«''"f'»>  "  J""*^'^^°" 
o' er  your  nation,  to  take  effect  in  June  ISaO.  That  "jour  nation  had  no  t^^* 
in  th/ formation  of  the  confederacy  of  tho  Union,  "V'oiTn'.-'rd^hSconi- 
with  the  lawo  of  individual  Slate,  becau.o  independent  of  thcin  :  end  that  conee- 
Tuently  thi.  act  of  Georgia  i.  to  bo  viewed  "in  no  other  l.ghtthan  a  wanton  u.ur- 
Ja^^in  of  power,  guaranteed  to  no  Slate,  neither  by  tha  common  law  of  tha  land, 

"  Tol.Uhi'.7h•.^^?^Sain  and  obviou.  an.war,  daducibl.  from  tha  known  hi- 
tory  of  the  country.  During  tha  war  of  the  Revolution,  your  Nation  wa.  tha 
fHeU  and  ally  of  Great  Britain  ;  a  power  which  then  claimed  entire  »"ver.ignty 
StSfn  the  IL  of  what  con.tituted  the  thir.cen  United  Slate,  fy  »''.  Decla- 
ration  of  Independence,  and,  .ub.enuently,  the  treaty  of  l.W,  *». '^e  riRht.  or 
aoveroienty  pertaining  to  (Jrcat  Brit.in  became  ve.ted  rwpectively  in  the  original 
8tauSrtL'\jnion,?nclud.n.  North  Carolina  and  Georgia  w.thm  who.,  um- 
torial  limit.,  a.  defined  and  known,  your  nation  wa.  then  .itualed.  If,  a.  i.  the 
c«  yoThave  been  permitted  to  abide  on  your  own  land,  from  that  period  to  th. 
ir«;nt%nioying  the  right  of  .oil  and  privilege  to  hunt,  it ..  not  Ih'nce  to  bo  in- 
Ferred,  Iha^  tl.  wa.  any  thing  more  than  a  pern.i».on  K'''^'^  °"«  f^^°X  ,^, 
with  your  nation  ;  nor  i.  it  a  circumstance  whence  now  to  deny  to  thoaa  State, 
the  exerci.8  of  their  original  Mtereignly.  „f  ,k.  Ri.t...  which  com- 

In  tha  year  na5,  three  year,  after  the  Fndepand-nca  of  tha  SUta.,  «»'"="  «°"^ 
poM  thi.  Union,  hid  been  acknowledged  by  Great  B^l*!;:' '  «"»  ^ V.  llnEa 
wa.  concluded  with  your  nation  by  the  United  Slate..  The  emphatic  »»ng"»8« 
U"onrn.clot  b^  mistaken,  -mmencing  a.  follow.  :-"  The  comm^^^^^^^ 

plenipotenrury  of  the  United  State,  in  Congre..  f»«'.'«'''*^-' R';«  .ffi  Stiu.  of 
Cherokee.,  and  receive  them  into  favour  and  protection  of  tha  Unitad  B**"'  »' 
AmericL'^  II  proceed,  then  lo  allot  and  define  your  lira.U  and  yo"  hunting 
JrouX  You  were  secured  in  tha  privilege  of  pursuing  the  game,  •"dfrom  'n- 
froachment.  by  the  whites.  No  light,  however,  .ave  a  mere  P°^««%°f ';*,' 
by  tho  provi.ion.  of  the  treaty  of  Hopewell,  conceded  to  your  "»t'°"^,^'';bided 
and  the  uw  of  it  were  .uffered  to  remain  with  you,  while  the  •?'«"'P'*y  »°'^?r 
precUely  where  it  did  before,  in  tho.e  State,  within  who.a  hmiU  you  war.  itt- 

"Sttb-Hiuaiit  to  thU,  your  paopla  war.  at  enmity  with  tha  United  Stata^  and 
w^dTwM  u^n  our  frontier  .etU.monU ;  a  durabl.  paaea  wm  not  anU/.d  into 


_i 


:  DELEOATrON. 
R,  AraiL  II),  1839. 
inter,  and  William 


iitry,  addreued  to  the 
liii  department,  lince 
*in((  coRveraed  frecljr 
;ted  bjT  him  to  submit 
)  to  the  aubjecta  which 

fthelawa  ofthe  Uni- 
ntended a  juriadiction 
ir  nation  had  no  Toic« 
ever  been  unahacUled 
hcin  :"  end  that  conae- 
lit  than  a  wanton  uiur- 
mmon  law  of  the  land, 

»  from  the  known  hia- 
your  Nation  was  the 
mod  entire  sovereignty 
Jtatos.  By  the  Decla- 
l"B3,  all  the  riRhts  of 
pectively  in  the  original 
[ia,  within  whose  terri- 
I  situated.  If,  aa  is  the 
from  that  period  to  the 
t  is  not  thence  to  bo  in- 
swing  out  of  compact! 
to  deny  to  thoae  States 

the  States,  which  com- 
in,  atrcaty  at  Hopewell 
The  emphatic  language 

»» The  cominisaioners 

ed,  give  peace  to  all  the 
of  the  United  SUtes  of 
miU  and  your  hunting 
the  game,  and  from  en- 
nere  possessory  one,  is, 
your  nation.  The  soil, 
( the  Bovereignty  abided 
)se  limiu  you  were  eit- 

1  the  United  States,  and 
lace  WM  not  ente/ed  into 


103 

with  you  until  1701-  At  that  period  a  good  understanding  obtained,  hostilitiee 
eeaaetJ,  and  >>y  the  treaty  made  and  concluded,  your  nation  was  plai-ed  undrr  the 
protarttnn  ol"  our  Oovernment.  and  a  iruaranty  ifiven,  lavoursble  to  the  orrupancf 
and  posufiision  of  your  country.  Hut  the  United  Htalrs,  always  mindful  of  the 
authority  ofthe  Stati'i,  even  when  treating  for  what  was  so  much  d«»ired,  peace 
with  their  rod  brothers,  forbore  to  offer  a  guaranty  alverse  to  the  sovereignty  of 
Oeorgia.     They  could  not  do  so  ;  they  had  not  the  pover. 

At  a  more  recent  period,  to  wit,  in  IIMW,  the  Htate  of  (Jeorgia,  defining  her  own 
proper  limits,  ceded  to  the  United  Htatcs  all  her  wextern  territory  upon  a  condi- 
tion, which  wasarceptcd,  "  that  the  United  Mtates  shall,  at  their  own  espcnse,  eX' 
tinguish  for  the  um  of  Ucnrgia,  aa  early  as  the  same  ran  be  peaceably  obtained  on 
reason«ble  term*,  the  iiulian  title  to  all  the  lutids  within  ihe  Ktato  of  Oecrt;m." 
She  did  not  p«k  the  military  arm  of  the  (fovornincnt  to  be  employed,  b  tin  her 
mildnossan  '  rbearance,  only,  that  the  soil  n<ight  bo  yielded  to  her,  so  soon  as  it 
could  peacoalily  b«  obtained,  and  on  roaaonablo  terms.  In  relation  to  sovereignty, 
nothing  IS  said  or  '"inted  at  in  thf  compact ;  nor  was  it  iieccusarv  or  even  proper, 
M  both  the  parties  to  the  agrenrarnt  wcil  know  that  it  was  a  right  which  already 
eiialsd  in  the  idtate  in  virtue  of  the  declaration  of  our  independence,  and  of  the 
treaty  of  |7IIJ  al>orwards  concluded. 

These  things  h».  J  been  made  known  to  you  frankly  and  afier  the  most  friendly 
manoar  j  and  particularly  at  the  making  ofthe  treaty  with  your  nation  in  1017, 
when  a  porticn  of  your  people  stipulated  to  remove  to  the  west  ofthe  Mississippi ; 
and  yet  it  is  alleged,  in  your  cominuuication  to  this  department,  (hat  you  have 
"  been  unsliackled  witn  the  laws  of  individual  HUles,  becauso  independent  of 

Uiem." 

The  course  you  have  pursued  of  establishing  an  independent,  substantive  go- 
verument  within  the  territorial  limits  ofthe  Htate  of  Georgio,  adverse  to  her  will 
and  contrary  to  her  consent,  has  been  the  immodiate  cause,  which  has  induced  her 
to  depart  from  the  forbearance  sho  his  so  longpracUsed  ;  and  in  virluo  of  her  au- 
thority, as  a  sovereign,  independent  Slate,  to  ejileiiU  over  your  country  her  legis- 
lative enactments,  which  she  and  every  state  embraced  in  the  confedertcy,  from 
I78J  to  the  present  time,  when  tlioir  independence  was  acknowledged  and  admit- 
ted,  possessed  the  power  to  do,  apart  from  any  authority,  or  opposing  interfer- 
ence by  the  General  Government. 

But  suppose,  and  it  ia  suggested  merely  for  the  purpose  of  awakening  your  bet- 
ter judgment,  that  Georgia  cannot,  and  ought  not,  to  claim  the  exorcise  of  such 
power—what  alternative  ia  then  presented  ?  In  reply,  allow  me  to  call  your  at- 
tention fo:-  a  moment  to  the  grave  character  ofthe  course  which,  under  a  mista- 
ken view  of  your  own  rights,  you  desire  this  government  to  adopt.  It  is  no  lese 
than  an  in-  itation  that  sho  shall  step  forward  to  arrest  the  constitutional  acts  of 
an  independent  State,  exercised  within  her  own  limits.  Should  this  be  done,  and 
Georgia  persist  in  Iho  maintenance  of  her  rights  and  he;  authority,  the  conse- 
quences might  be  that  the  act  would  prove  injurious  to  us,  and,  in  all  probability, 
ruinous  to  you.  The  sword  might  be  looked  to  as  the  arbiter  in  such  an  inter- 
ference.—But  this  can  never  bo  done.  The  President  cannot  and  will  not  beguile 
you  with  auch  an  expeotation.  The  armo  of  this  country  can  never  be  employed 
to  sUy  any  State  of  this  Union  from  the  exercise  of  those  legiiimatp  powers, 
which  atUch  and  belong  to  their  aovereign  charecter.  An  interference  to  the 
extent  of  affording  yo'i  protection,  and  the  occupancy  of  your  soil,  is  what  ia  de- 
manded ofthe  justice  of  this  country,  and  will  not  be  withheld  ;  yet  in  doing  this, 
the  right  of  permitting  to  you  the  enjoyment  of  a  separate  Government  within 
the  hmiu  of  a  State,  and  of  denying  the  exercise  of  sovereignty  to  that  S<ale 
within  her  own  limiU,  cannot  be  admitted.  It  is  not  withiii  She  range  of  powora 
granted  by  the  States  tc  the  General  Government,  and  therefore  not  within  iU 
competency  to  be  exercised. 

In  this  view  of  the  circumstances  connected  with  your  application,  it  becomes 
proper  to  remark,  that  no  remedy  can  be  perceived,  except  that  which  frequently 
heretofore  has  been  submitted  for  your  consideration — a  removal  beyond  the  Mis- 
sissippi, where  alone  can  be  assured  to  you  protection  and  pc^ce.  \i  must  be  ob- 
vious to  you,  and  the  President  has  instructed  me  to  bring  it  to  your  candid  and 
seriou*  rtoniideration,  that  to  eontinue  where  you  are,  within  the  territorial  limits 


IttI 

of  »n  independsnt  State,  can  promise  you  nothing  but  interruption  and  diiquis* 
tude.  Beyond  llio  Misaissippi  your  prospects  will  bo  difierent.  Tliere  you  will 
find  no  conflicting  interoHls.  I'ho  United  States'  power  and  sovereignty,  uncon- 
trolled by  Iho  high  authority  of  State  jurisdiction,  and  resting  on  its  own  ener- 
gies, will  be  able  to  say  to  you,  in  the  language  of  your  own  nation,  »  the  soil 
■hall  bo  yours,  while  the  trees  grow  or  tho  streams  run."  But  situated  where 
you  now  arc,  he  cannot  hold  to  you  such  language,  or  consent  to  beguile  you  by 
inspiring  in  your  bosoms  hopes  and  expectations  which  canni. ,  ^o  realized.  Jus- 
tice and  friendly  feelings  cherished  towards  our  red  brethren  of  the  forest,  de- 
mand that,  in  all  our  intercourse,  frankness  should  be  maintained. 

The  president  desires  me  tn  say,  that  the  feelings  entertained  by  him  toward* 
your  people,  are  of  the  most  friendly  kind  ;  and  that,  in  the  intercourse  heretofore, 
in  past  times  so  frequently  had  with  the  chiefs  of  your  nation,  ho  failed  not  to 
warn  them  of  the  consequences  which  would  result  to  them  from  residing  within 
the  limits  of  sovereign  titates. 

He  holds  to  them  now  no  other  language  than  that  which  he  has  heretofore  em- 
ployed ;  and  in  doing  bo,  feels  convinced  that  he  is  pointing  out  that  course  which 
humanity  and  a  just  regard  for  the  interests  of  the  Indian  will  be  found  to  sanc- 
tion.   In  the  view  entertained  by  him  of  this  important  matter,  there  is  but  a 
single  alternative— to  yield  to  tho  operation  of  those  laws  which  Georgia  claims, 
and  has  a  right  to  extend  throughout  her  own  limits,  or  to  remove,  and  by  asso- 
elating  with  your  brothers  beyond  the  Mississippi,  to  become  again  united  ari  one 
nation,  carrying  along  with  you  that  protection  which,  there  situated,  it  will  be 
in  the  power  of  the  Government  to  extend.    The  Indians  being  thus  brought  to- 
gether at  a  distance  fron;  their  white  brothers,  will  be  relieved  from  very  many  of 
those  interruptions,  which,  situated  as  they  are  at  present,  are  without  remedy. 
The  Government  of  tlie  United  States  will  then  be  able  to  exercise  over  them  a 
paternal  and  superintending  care,  to  happier  advantage;  to  stay  encroachment!, 
B,nd  preserve  them  in  peace  and  amity  with  each  other;  while,  with  the  aid  of 
schools,  a  hope  may  be  indulged  that,  ere  long,  industry  and  refinement  will  take 
the  place  of  those  wandering  habits  now  so  peculiar  to  the  Indian  characier,  the 
tendency  of  which  is  lo  impede  them  in  their  march  to  civilization.  ... 

Respecting  the  in'rusion  on  your  lands  submitted  also  for  consideration,  it  la 
sufficient  to  remark,  that  of  these  the  Department  had  already  been  advissd,  and 
instructions  have  been  forwarded  to  tho  Agent  of  the  Cherokees,  directing  him  to 
cause  their  removal ;  and  it  is  earnestly  hoped  that,  on  this  matter,  all  cause  for 
future  complaint  will  cease,  and  the  ordoi  prove  effectual.  With  great  respect, 
vour  friend,  JOHN  H.  EATON. 


RESOLUTIONS  OF  THE  OLD  CONGRESS. 

The  following  extracts  are  taken  from  the  proceedings  of  tho  Congresa  of  the 
Revolution,  the  most  illustrious  body  of  men,  in  the  judgment  of  Lord  Chatham, 
that  ever  assembled  to  deliberate  on  national  affairs.  Shall  our  rulera  and  our 
people  jorget,  in  the  days  of  our  power  and  prosperity,  the  pledges  which  were  gi- 
ven, and  the  solemn  promises  made,  in  the  hour  of  our  country's  peril  ? 

In  Congress,  June  30, 1775,  ''Resolved,  That  the  committee  for  Indian  affairs  do 
prepare  proper  talks  to  the  several  tribes  of  Indians,  for  engaging  tho  continu- 
ance of  their  friendship  to  us,  and  iieutrality  in  our  present  unhappy  dispute  with 

Groat  Britain.  .  .    i-  41,- 

In  Congress,  July  12, 1775,  "  Resumed  the  consideration  of  the  report  ot  tne 

committee  on  Indian  affairs,  and  the  same  being  gone  through,  was  agreed  to,  as 

"  That  the  securing  and  preserving  the  friendship  of  the  Indian  nations  appear 
to  be  a  subject  of  the  utmost  moment  to  these  colonies. 


' 


ption  and  diiquie* 
t.  Tiiere  you  will 
lovercignty,  uncon- 
ig  on  its  own  ener- 
n  nation,  "  the  soil 
But  situated  where 
t  to  beguile  you  by 
,  Lte  realized.  Jus- 
n  of  the  fureit,  de- 
ined. 

led  by  him  toward* 
ercourso  heretofore, 
>n,  ho  failed  not  to 
roin  residing  within 

}  has  heretofore  em- 
it that  course  which 
ill  be  found  to  sanc- 
itter,  thure  is  but  a 
lich  Georgia  claims, 
^movo,  and  by  asso- 

again  united  ap  one 
re  situated,  it  will  be 
ing  thus  brought  to- 
d  from  very  many  of 
are  without  remedy, 
xercise  over  them  ft 

stay  encroachmenti, 
rhile,  with  the  aid  of 

refinement  will  take 
Indian  characier,  the 
'.ation. 

)r  consideration,  it  ia 
dy  been  advised,  and 
Lces,  directing  him  to 

matter,  all  cause  for 
With  great  respect, 
IN  H.  EATON. 


LESS. 

fthoCongresi  of  the 
ent  of  Lord  Chatham, 
ill  our  rulers  and  our 
ilcdges  which  were  gi- 
itty's  penl  ? 

e  for  Indian  affairs  do 
engaging  the  continu- 
unhappy  dispute  with 

I  of  the  report  of  the 
ugh,  was  agreed  to,  as 

Indian  nations  appear 


105 

"  That  there  is  too  much  reason  to  apprebord  that  administration  [that  is, 
the  British  government,]  will  spare  no  means  to  cscito  the  several  nations  of  In- 
dians to  tako  up  arms  against  thcao  colonics;  and  that  it  becomes  us  to  bo  very 
active  and  vigilant  in  exerting  every  prudent  moans  to  strengthen  and  confirm 
the  friendly  disposition  towards  these  colonies,  which  has  long  prevailed  among 
the  norlhern  tribes,  and  which  has  lately  been  manifested  by  some  of  those  to 

the  southward."  •.,,.•  ,    • 

^  That  the  commissioners  have  power  to  treat  with  the  Indians,  ni  their  re- 
•pective  departments,  in  the  name  and  on  behalf  of  the  united  coloi.ies,in  order 
to  preserve  peace  and  friendship  with  the  said  Indians,  and  to  prevent  their  tak- 
ing any  part  in  the  present  commotions."  ,     ,  ... 

/f»  Congreit,  July  1.3, 1775,  "  Ordered,  That  a  talk  bo  prepared  for  tho  Indian 
mtions,  so  as  to  sait  the  Indiana  in  the  several  departments." 

lnCor^teii,iiej)l.  14,  l'7ij,  »» The  commissioners  for  Indian  affairs,  in  the 
nothcrn  department,  Uansinitted  to  the  congress  the  minutes  of  a  treaty,  held 
with  the  Six  Nations,  at  Albany,  in  August." 

In  Congreu,  Feb.  5, 1776,  Resolved,  That  a  friendly  commerce  between  the 
people  of  the  united  colonies  and  tho  Indians,  and  the  propagation  of  the  gospel, 
and  the  cultivation  of  the  civil  arts  among  the  latter,  may  produce  many  and 
inestimable  advantages  to  both:  and  that  tho  commissionp-a  for  Indian  affaire 
be  desired  to  consider  of  proper  places,  in  their  respective  departments,  for  the 
raaidence  of  ministers  and  schoolmasters,  and  feport  the  eame  to  Congrose." 

In  Congreu, Mareh^,  1776,  »  Retolved,  That  Indians  be  not  employed  assol- 
diera  in  the  armies  of  the  united  colonies,  before  the  tribes  to  which  thoy  belong 
ahall,  in  a  national  counoiI,held  in  the  customary  manner,  have  consented  there- 
unto, nor  then,  without  express  approbation  of  Congress."  • 

tnCongrest,  April  10,  VnQ,"-Rttolved,  That  the  commissioners  for  Indian 
affair^n  the  middle  depar  ment,  or  any  one  of  them,  be  desired  to  employ,  for 
reaeonable  salaries,  a  minister  of  the  gospel,  to  reside  among  the  Delaware 
Indians,  and  instruct  them  in  tho  Christian  religion;  a  schoolmaster  to  teach 
their  youth  i-eadin^,  writing,  and  arithmetic ;  also  a  blacksmith  to  do  tho  work 
ofthe  Indians  in  the  middle  department."  „    ,    ,. 

In  Congru*,May,i\,  ma,''  Resolved,  That  the  standing  committee  for  Indian 
affairs  bo  directed  to  take  measures  for  carrying  into  execution  the  resolution  of 
the  6th,  for  holding  a  treaty  with  the  Indians  in  the  different  departmenU,  at 
soon  as  praeticablo."  .        ^    ■,  j,- 

in  Congreu,  May  27, 1776,  "  Resolved,  That  the  standing  commitUe  for  Indian 
affair*,  be  directed  to  prepare  a  speech  to  be  delivered  to  the  Indiana,  and  to 
procare  such  articles  aa  they  judge  proper  for  a  present."  ^    •  .^  .. 

In  Congress,  Sepl.  19, 1776,  ''Resolved,  That  it  be  recommended  to  the  inhabi- 
tanU  of  the  frontiew,and  to  the  officers  at  all  the  posts  there,  to  treat  the  Indiana 
who  behave  peaceably  and  inoflTensively,  with  kindness  and  civility,  and  not  to 
eufffer  them  to  be  ill  u«^J  or  insulted." 

»  As  it  may  be  a  means  of  conciliating  the  friendship  of  the  Canadian  Indians, 
or  at  least  of  preventing  hostilities  from  them,  in  some  measuft  to  assist  the 
President  ol  Dartmouth  college,  in  New  Hampshire,  in  maintaining  their  youth, 
who  are  now  there  under  his  tuition,  and  whom  tho  revenues  ofthe  college  are 
not,  at  thi«  time, sufficient  to  support;  that  for  this  purpose,  five  hundred  dol- 
lars be  paid  to  the  Rev.  Dr.  Eleeiar  Wheelock,  President  of  the  said  college/' 

/rt  Congress,  Ocl.  20, 1777,  "Resolved,  That  it  be  earnestly  lecoaimended  to  the 
president  and  assembly  ofthe  State  of  Georgia,  to  use  their  utmost  exertions  to 
cultivate  peace  and  harmony  with  th» Indian  nations;  and  to  enable  them  to 
effect  this  salutary  purpose,  that  they  forthwith  enact  laws,  inflicting  severe 
penalties  on  such  of  their  inhabitanta  as  may  endeavour  to  provoke  a  war,  which 
may  endanger  tho  sUte  of  Georgia,  and  entail  freat  injury  and  expense  on  tha 
United  States."  ,_      ^    ^ 

In  Congress,  Feb.  2,  1778, "  Resohed,  That  the  comraissioneni  speak  and  act 
ia  such  manner  m  they  shall  think  most  likely  to  obtain  the  friendship,  or  at 
leaat,  the  neutrality  ofthe  Indians,  and  that  Congress  will  support  the  commis- 
■ioners  in  any  meas-jres  they  shall  conceive  best  calculated  to  answer  these  ends." 

In  Cmgrus,  May  17,  1779,  "  Resolved,  That  the  commissioners  for  Indian 
affairs  in  the  northern  department,  be  directed  to  consult  Goniral  Washington 
14 


V, 


..iaaMiMc£U»M»>d>i« 


/ 


im 


•f^ 


upon  all  tfOBties  with  the  Indian«,and  to  govern  themwlveg  by  iuch  initractions, 
as  ho  shall  give  thorn,  relative  to  any  partial  or  general  treaty  of  peace  Is.  b« 
concluded  with  them."  [It  would  seem  that  tho  Old  Congress  wos  so  simple 
as  really  to  believe,  that  General  Washington  had  understanding  sufiicient  to 
enable  him  to  decide  what  was  a  treaty  and  what  was  not;] 

In  Congres;  Feb.  21,  17«0,  »  Reiolved,  That  the  commissioners  of  Indian  af- 
fairs in  the  noithcrn  department,  bo  authorized  and  instructed  to  take  such  se- 
curities from  tlio  hostile  tribes  of  Indians,  to  ensure  the  faithful  performonce  of 
their  engogements  with  tho  said  commissioners,  as  seem  most  conducive  to  the 
end  proi'OHcd,  in  lieu  of  hostoges."  ... 

In  Con^n$$,  Oct.  15,  1783,  "  Resolved,  That  a  convention  be  held  with  the 
Indians  residing  in  the  northern  and  middle  departmenU,  who  have  taken  up 
arms  against  the  United  States,  for  tho  purposes  of  receiving  them  into  th«  fa- 
vour and  protection  of  the  United  States,  and  of  establishing  boundary  linea  of 
property,  for  separating  and  dividing  tho  settlements  of  the  citizens  from  the 
Indian  villages  and  hunting  grounds,  and  thereby  extinguishing,  as  far  oa  possi- 
ble, all  occasion  for  future  animosities,  disquiet,  and  contention." 

In  Congresi,  July  15,  1788,  »  Whereas  it  is  represented  to  congress,  by  the 
delegates  of  the  SUte  o£  Georgia,  thatthe  principal  parts  of  the  frontiers  ofthat 
State  have  been  for  several  year^past  invaded,  and  kept  in  a  state  of  alarm  by 
the  Creek  Indians;  that  the  fighting  men  ofthat  nation,  supposed  to  amount  to 
not  less  than  six  thousand,  have  been  so  far  instigated  by  refugees  and  fugitive 
traders,  who  had  formerly  escaped  from  these  States  and  taken  refuge  among 
them,  as  to  keep  up  constant  and  bloody  incursions  on  the  different  parts  ofthat 
frontier,  and  that  the  settlements  of  fov-  of  the  exterior  counties  are  almost  en- 
tirely broken  up: 

"/^Mo/ued,  lliatthesuperintendantand  commisBionen  for  the  louthem  de- 
partment be  instructed,  if  tlioy  shall  find  it  necessary,  to  notify  to  tho  said  In- 
dians, tlMit  should  they  persist  in  refusing  to  enter  into  a  treaty  upon  reasonable 
terms,  the  arras  of  the  United  States  shall  be  called  forth  for  the  protection  of 
tliat  frontier."  , ,  _, 

In  Congrett,  Sept.  1,  1788,  "Whereas  the  United  States  in  congress  aasembletl 
by  their  commissions  duly  appointed  and  ruthorized,  did,  on  the  twenty-eighth 
day  of  November,  one  thousand  seven  hundred  and  eighty-five,  at  Hopewell,  on 
the  Keowee,  conclude  articles  of  a  treaty  with  all  the  Cherokeet,  and  among 
other  things  stipulated  and  engaged  by  article  fourth,  '  that  the  boundary  al- 
lotted to  the  Cherokees  for  their  hunting  grounds,  between  the  said  Indians  and 
the  citizens  of  tho  United  States,  within  the  limits  of  the  United   States  of 
America,  is  and  shall  be  the  following,  viz :  [The  boundaries  are  here  inserted]. 
And  whereas  it  has  been  represented  to  congress,  that  several  disorderly  persons 
settled  on  the  frontiers  of  North  Carolina,  in  the  vicinity  of  Chota,  have,  in 
open  violation  of  the  said  treaty,  made  intrusions  upon  the  s»id  Indian  hunting 
grounds,  and  committed  many  unprovoked  outrages  upon  the  said  Cherokees, 
who,  by  the  said  treaty,  have  put  themselves  under  the  protection  of  the  United 
States,  which  t>roceedings  are  highly  injurious  and  disrespectful  to  the  authority 
of  the  Union,  and  it  being  the  firm  determination  of  congress  to  protect  the  said 
Cherokees  in  their  rights,  according  to  the  true  intent  and  morning  of  tho  said 
treaty;  the  U.  S.  in  congress  asserablr.    have  therefore  thought  fit  to  issue,  and 
they  do  hereby  ip«ue,  this  their  proclamation,  strictly  forbidding  all  such  un- 
warrantable intrusions,  and  hostile  proceedings  against  the  said  Cherokees ;  and 
enjoining  all  those  who  have  settled  upon  the  said  hunting  grounds  of  the  said 
Cherokees,  to  depart,  with  their  familial  and  effecte,  without  loss  of  time,  as 
tBey  shall  answer  their  disobedience  to  the  injunctions  and  prohibitions  ex- 
pressed in  this  resolution  at  their  peril : 

"  He/olvtd,  That  tlie  Secretary  of  War  be,  and  he  is  hereby  directed,  to  have 
a  sufficient  number  of  the  troops  in  the  service  of  the  United  Stales,  ia  readiness 
to  march  from  the  Ohio,  to  th?  protection  of  the  Cherokees,  whenever  congress 
-hall  direct  the  same ;  and  that  he  take  measures  fti  obtaining  information  of 
he  best  routes  for  troops  to  marcii  from  the  Ohio  lO  ClioU ;  and  for  dispersing 
among  all  the  white  inhabitants  settled  upon,  or  ij.  tiie  vicinity  of  the  hunting 
grounds  secured  to  the  Cherokees,  by  the  t-eaty  concluded  between  them  and 
the  United  SUtes,  Nov.  «8, 1785,  the  proclamation  of  congresa  of  this  date. 


by  (uch  initrucUotif, 
reaty  of  peace  tu  b« 
tgreas  wai  lo  litnple 
tending  sufficient  to 

slonera  of  Indian  af- 
:ted  to  take  such  k- 
thful  performance  of 
loit  conducive  to  the 

on  be  held  with  the 
who  have  taken  up 
ng  them  into  th«  fa- 
ng boundary  lines  of 
lie  citizens  from  the 
Bhing,  as  far  as  posti- 
lion." 

to  congress,  by  the 
if  the  frontiers  ofthat 
u  a  state  of  alarm  by 
ipposed  to  amount  to 
refugees  and  fugitive 
taker,  refuge  among 
liSerent  parts  ofthat 
lunties  are  almost  en- 

for  the  southern  de- 
notify  to  the  said  In- 
reaty  upon  reasonable 
for  the  protection  of 

in  congress  assemble^ 
on  the  twenty-eighth 
r-five,at  Hopewell,  on 
herokeeb,  and  among 
hat  the  boundary  al- 
0  the  said  Indians  and 
he  United   States  of 
ries  are  here  inserted], 
eral  disorderly  persons 
ily  of  Chota,  have,  in 
le  s»id  Indian  hunting 
in  the  said  Cherokees, 
'Otection  of  the  United 
pectful  to  the  authority 
ress  to  protect  the  said 
id  merning  of  the  said 
lought  fit  to  issue,  and 
irbidding  all  such  un- 
le  said  Cherokees ;  and 
ng  grounds  of  the  said 
Ithout  loss  of  time,  as 
s  and  prohibitions  ex- 

ereby  directed,-  to  have 
ted  States,  ia  readiness 
ces,  whenever  congress 
btainiug  information  of 
Ota ;  and  for  dispersing 
vicinity  of  the  hunting 
[ded  between  them  and 
>ngress  of  this  date." 


107 

The  foregoing  proclamation  and  resolution  are,  in  the  highest  degree,  honor- 
able  to  the  congress  of  the  United  Slates.  Measures  of  a  directly  opposite 
character  must  therefore  be  hii^hly  dishonorable.  A  similar  proelamaliou,  fol- 
lowed by  a  corresponding  order  from  the  war  department,  would  now  afford  a 
perfoct  shield  to  the  Cherokees. 

A»  EXAMINATION  or^^lo^.f  ^P/to^H™"""" ''"' *'"'°- 

fee,  was  only  a  consequence  of  the  habit,  wnicn  ai»  pi«|o 

cordance  with  their  origmal  meaning.  ,  .  „f  .i.o  nninlon  delivered 

That  such  is  the  scope  of  the  two  last  paragraphs  of  the  0P.""°"' °^";;7" 

by  cSnustlce  Marshall,  will  be  evident  ona  moment's  reflection.    The  para- 

miffht  not  be  construed  to  amount  to  a  decision  that  meir  gronii-u  .  e 
Uin  an  ejectment  for  thorn,  notwithstanding  that  title. 

and  confessed  an  apPfehension,  that  the  decision  migii  ^^^ 

that  the  individuals,  to  whom  the  state  had  granted  its  ''S"''  ';"'"_,„.  -Uould 
W  from  the  Indilns,  bv  a  wrU  of  ejc^--^^  ^^v"  rcCtTffectaliJ 

-iil'StSi/iiSffiSiriiKnot.in  ^^^^^zz 

Whenever  it  shall  be  extingn.shed,  »l  will  be  « ^  «Jf^i'^^7ho  j  *^ 
constitution  and  laws  of  the  UnUed  State.,  »"f„»f.Vea«rof  Fletcher  and  Peck, 
That  this  is  a  fair  account  of  the  "J^^'"";;"  'j!,nppeaVs  to  us  perfectly 
so  far  as  relates  to  the  quesUop  now  before  the  oubhc.  appears  i         p    ^^^^^j^ 

clear.    But  if  we  have  mistaken  the  ri^eaning  of  /°«  ^^"^^j  ^c  orily  stated, 
open  to  conviction,  whenever  that  meaning  shall  ^*  ""'/."j^bLL     their 

In  the  mean  time,  let  those  ,vho  "«  »l?""!ff°y!^,'Je  eo^^^^^^^ 
title  to  their  country  is  "  on/i(  the  f^'^.  "/.^""^-'^^  TJupy  the  lands  of 
reflection,  that,  by  virtue  of  this  right,  ^^^  J^^erokees  may  ocrt^py,^  ^^^^^ 

their  fathers  till  the  end   of  the  world,  «nle«  they  •»!;»  vo"^«     of  occupancy 
lands  to  the  United  States,  for  the  use  of  Georgia.    Their  rigni  oi 


mr 


108 

raaehei  back  to  tim«  b«yond  th«  memory  of  man.  Thif  is  et  good  aUUe,  in  its 
own  nature.  a>  any  titlo  thnt  can  bo  conceived.  Illack.tone  says, "  It  i«  agreed 
on  all  handa,  that  occupancy  jravo  the  original  titlo  to  the  permanent  proj-erty 
in  the  .ubetance  of  the  earth  itsolf,  which  exclude,  every  one  eiao  but  the  owner 
from  tha  use  of  it."  And  the  right  to  ornii>!/  Iheir  country  frrevtr  haa  been  aoleinn- 
ly  and  repeatedly  guaranteed  to  the  Chcrokces.by  tho  highest  aulhontiea  of  our 

"M*is  said  they  have  on/v  the  title  of  occupancy,  because  they  cannot  sell  their 
land*,  oicopt  to  tho  United  States,  and  in  a  prescribed  manner.  Nor  can  they 
aivo  iway  their  lands,  except  to  tho  Unitc.l  States.  Their  rights  are  restrained 
in  reffiird  to  tho  eale,  or  cession,  of  lands,  for  two  good  reasons.  1.  They  have 
iolemnly  agreed  with  iU  United  States,  that  they  will  not  sell,  or  cede  their 
lands,  except  as  above  mentioned.  This  was  a  fair  stipulation,  which  they  had 
full  power  to  make,  and  which  was  intended  to  be,  and  actually  is,  for  their 
benefit  2  The  United  States  have  forbidden  the  whites  to  purchase  ot  the 
Indians,  which  the  United  Slates  had  a  perfect  right  to  do,  and  which  was  done 
Ibr  the  protection  of  the  Indians.  Foreign  nations  ore,  of  course,  excluded  trom 
passing  our  national  boundaries;  and  all  the  large  tribes  of  Indians  have  cove- 
nanted not  to  form  -ay  connexion  with  foreigners,  which  shall  be  inconsiatent 
with  living  under  the  protection  of  the  United  States. 

In  the  case  of  Johnson  and  M'Intoah,  which  waa  decided  in  1 823,  the  Supreme 
Court  thus  ezpresaad  itself: — 

"It  hoB  never  been  doubted  that  either  tho  United  States  or  the  several  Statea 
had  a  clear  titlo  to  all  the  lands  within  tho  boundary  lines  described  m  the  treat]/, 
fof  17831  tubject  only  to  the  Indian  right  of  uecupanei/,  and  that  the  exclusive 
power  to  extinguish  that  right  waa  vested  in  that  government  which  might  con- 
•titutionally  exercise  it."— 8  Wheaton'i  Report*,  p.  585. 

Tho  question,  in  tho  case  of  Johnson  and  M'Intosh,  wis,  whether  granU  of 
land  in  the  wilderness,  which  ia  now  tho  state  of  Illinois,  made  to  pnvate  pur- 
ehasers,  citizens  of  Virginia,  in  the  years  1773  and  1775,  by  chiefs  of  the  Illinou 
and  Piankeahaw  tribes  of  Indians,  aro  good  and  valid  grants,  binding  on  the 
courts  of  the  United  States.  The  court  decided,  that  such  grants  were  not 
Talid :  and,  in  the  course  of  tho  decision,  went  somewhat  at  length  into  the  con- 
•ideraUon  of  Indian  title.  We  can  confidently  declare  it  aa  our  opinion,  that, 
in  this  very  elaborate  and  candid  discussion,  tho  Court  advanced  nothing  which 
haa  an  unfavourable  bearing  upon  tho  claims  of  the  Cherokees. 

The  Court  said,  indec  il,tUat  "  the  United  States,  or  the  several  states,  have  a 
clear  title  to  all  the  lands  within  our  national  '.iinita."  What  the  Court  meant 
by  a  «  clear  tiUe,"  is  abundantly  explained  to  be  the  exclusive  right  of  acquiring 
the  Indian  lands.  European  nations,  the  colonics  of  Europeans,  and  the  inde- 
pendent states  of  North  America,  have  all  claimed  that  the  government,  to  the 
exclusion  of  private  purchasers,  has  the  right  of  acquiring  tho  possession  ot 
Indian  territory  ;  and  that  foreign  nations  could  not  intrude  upon  the  discoveriea 
of  each  other  rcspcctivnly.  These  principles  have  been  so  constantly  asserted 
by  all  the  govcriinionts  above  mentioned,  that  they  havi-  become  principles  ot 
established  law  ;  and  the  Court  is  bound  by  thom,  and  cmnotgo  into  tho  con- 
aideration  of  the  principles  ot  abstract  justice.  That  v  *»  we  all  know,  it  la 
tho  duty  of  the  Court  to  doclaro  what  tho  law  is,  an;  <.,  ly  "t— not  to  mafcc 
the  law  The  »  clear  titlo,"  then,  which  the  government  has  to  Indian  lands, 
comprises,  first,  the  power  of  excluding  foreign  nations  froni  intruding  upon 
these  lands;  secondly,  the  power  of  forbidding  private  men  from  purchasing 
them;  and  thirdly,  since  tho  adoption  of  the  federal  constitution,  tne  exclusive 
power  of  the  general  government  to  extinguish  Indian  title  by  treaty.  AU 
these  claims  of  the  government  have  been  admitted  by  the  Cherokees,  CreeKs, 
Chickaaaws,  and  Chocttws,  in  the  various  treaties  now  in  force.  The  Indians 
make  no  complaint,  in  regard  to  these  claima.  Though  their  natural  righte  are 
circumscribed  in  this  manner,  yet  thev  very  well  know  it  is  for  their  bonefit; 
and  they  would  be  the  first  to  desiro,  that  their  conimunitias  might  be  deJenueo 
from  the  intrigues  of  foreign  nations,  and  the  frauds  of  private  apeculatow. 
They  would  no  more  think  of  complaining  that  tlieir  natural  rights  are  limited, 

\ 


B»  good  a  title,  in  its 
I  BUJB, "  It  ia  agruad 
permanent  proi^erty 
le  elio  but  the  owner 
evtr  haR  been  lolenin- 
est  aulfaoritiei  of  our 

hoy  cannot  eell  their 
nner.  Nor  can  they 
rights  are  restrained 
!ons.  1.  They  have 
at  sell,  or  cede  their 
tion,  which  they  had 
actually  is,  for  their 
8  to  purchase  of  the 
and  which  was  done 
;our8e,  excluded  from 
f  Indians  have  cove- 
shall  be  inconsistent 


in  1823,  the  Supreme 

I  or  the  several  States 
leacribed  in  the  //«a(y, 
d  that  the  exclusive 
ent  which  might  coti- 

\8,  whether  granU  of 

mado  to  private  pur- 
y  chiefs  of  the  Illinois 
rants,  binding  on  the 
such  grants  were  not 
U  length  into  the  con- 
.  as  our  opinion,  that, 
ranced  nothing  which 
ikees. 

several  states,  have  a 
'hat  the  Court  meant 
lire  right  of  acquiring 
opeans,  and  the  inde- 
he  government,  to  the 
ring  the  possession  of 
Ic  upon  the  discoveries 
10  constantly  asserted 
.  become  principles  of 
innotgo  into  the  con- 
Ks  we  all  know,  it  is 
I  Jy  >.t — not  to  make 
[i  has  to  Indian  lands, 
■  from  intruding  upon 
men  from  purcnasing 
titution,  the  exclusive 

title  by  treaty.  All 
he  Cherokees,  Creeks, 
n  force.  The  Indians 
;hcir  natural  rights  are 

it  is  for  their  bnnefit; 
lies  might  be  defended 
f  private  speculators, 
ural  rights  are  limited. 


109 

of  the  uSfted  Slate,  was  .ubject  to  the  Indian  r.ghiof  oca,pancy.     What  .. 

Jh^rrk^^cZtr^^ctUrnfn/'whTro  itty  of  cession  his  been  made,  are 
"we  S:K'o  more  quotations  from  the  opinion  of  the  Court,  in  the  ca«.  of 
^•'llThrl^'e'/ret  contended,  that  the  In^an  tUle  a-ounted  »»  "t^„^: 

^^l^tt'Kt^e^^ 

right  of  the  Indians  to  rota  n  their  P^f?"?^'""' ,,-Vtioned  richt  of  possession  ; 

;r.'rar;i  f  SElr  r»'"^  e-'-- 

.    wise  diminished  or  affected,  by  the  !>''^''"  °;. \7/.7';' ':.  u.g  usually  been  call- 


I 


^l 


■ 


110 


t 


Indian  title  of  occupancy]  !■  no  more  Incompatible  with  a  leuin  in  fee,  than  a 
leaie  for  year*  ;».  and  might  as  effectually  bar  an  ejectment."  p.  592. 

f 'ommon  readers,  not  being  acquainted  with  legal  terme,  cannot  take  the 
force  of  thi.  quotation.  Let  u«  explain  it.  If  Mr.  Prime  holde  a  house  m 
Wall-etreet  to  himself  and  hia  heiri  for  ever,  iie  it  eaid  to  be  aeieed  in  lee  of 
that  house.  He  may  malte  a  leoie  of  the  house,  for  a  valuable  •onsidcration. 
to  the  corporation  of  thS  Merchants'  Exchange,  for  the  term  of  a  thousand 
years,  and  the  corporation  may  take  po.^s.s.on  :  still  Mr.  Pnmo  ..  sewed  m  fee 
of  the  house,  and  has  the  ultimate  title  to  bim  and  his  heirs.  TBe  lease  of  he 
house  fora  thouHand  years  may  bo  worth  |100,000;  and  Mr.  Prime's  "ulU- 
mate  title"  which  is  to  be  enjoyed  by  hirheirs  a  thousand  years  hence, 
would  not  probably  sell  at  auction  for  enough  to  pay  a  lawyer  for  making  a 

""'now  the  Court,  in  effect,  say.  reverting  to  the  doctrine  laid  down  in  the 
case  of  Fletcher  and  Peck,  "  The  decision  that  the  right  of  pre-emption,  which 
the  United  States  are  to  exercise  for  the  use  of  Georgia,  may  be  technically 
called  a  lewin  in  he,  no  more  proves  that  Georgia  may  take  possession  of  the 
Cherokee  country  and  drive  out  the  natives,  or  that  the  grantees  of  Georgia 
mav  brine  a  suit  of  ejectment  against  the  Indians,  and  thus  got  possession, 
Ihtn  the  fact  that  Mr.  Prime  is  seised  in  fe«  of  a  house  in  Wall-street  would . 
Drove  that  he  might  bring  an  ejectment  against-  the  corporation  of  the  Mer- 
chanU'  Exchange,  when  he  had  himself  put  the  said  corporation  in  possewion 
of  the  premises,  by  a  lease  for  a  thousand  years." 

The  Cherokoes  might  "  as  effectually  bar  an  ejectment,"  to  use  the  very 
words  of  the  Court,  by  pleading  that  possession,  to  which  they  have  a /egoUnd 
,^/  claim,  as,  in  the  case  supposed,  the  Merchants'  Exchange  could  resist  the 
suit  of  Mr.  Prime,  by  pleading  his  owi.  'ease  fcr  a  thousand  years. 

it  i.  nl  ural  that  people  sTiould  mistake  in  regard  to  the  decision  of  the 
Court,  by  the  mere  .Ln4  oHhe  Kords  nud,  that  i-,  by  taking  the  popular  mean- 
W  of  words,  rather  than  the  legal  and  technical  meaning.'  Thus,  for  instance, 
he  "undoubted  title"  and  the  "  ultimate  title"  of  an  acre  of  land  bordering 
on  Wall-street,  might  not  be  worth  five  cents;  because  it  might  be  charged  of 
incumbered,  with  "  <Ae  mert  right  of  occupancy,"  fora  certain  period,,  which 
riXof  ^cuprxncymightbcwortha  million  of  dollars.  Bu  as  to  any  mis- 
Xe.  of  thi.  kind,  the  Court  is  not  in  fault.  In  making  legal  decisions,  it  u 
oftrn  a  matter  of  necessity  that  technical  words  should  be  used. 

The  Court  was  not  called  in  either  of  the  cases  cited,  to  say  any  thing  about 
treaties  with  the  Indians;  but  should  these  treaUes  ever  come  bffore  the  Court, 
it  wi  1  be  seen  that  the  "judgrs"  of  this  Court,  and  of  every  other  Court  in  the 
United  States,  are  as  much  «  bound"  by  them,  aa  by  the-  constitution  lUelf.- 
Jf.Y.  Observer. 


EXTRACTS  FROM  THE  OPINION  OF  CHANCELLOR  KENT,  IN 
THE  CASE  OF  GOODELL  w.  JACKSON.  Johmon't  ReporU,  vol.  xx. 
page  693. 

Indiana  not  under  the  laws  of  New  York. 

»  The  Oneidaa,  and  the  other  tribes  composing  the  six  i.  'one  of  Indiana, 
were,  originally,  f'ee  and  independent  nations.  It  is  for  the  counsel,  who  con- 
tend that  they  have  now  ceased  to  be  a  distinct  people,  and  become  completely 
incorporated  wUh  us,  and  clothed  with  all  the  rights,  and  bound  to  all  the  du- 
ties  of  citizens,  to  point  out  the  precise  time  when  that  event  took  placcj^  i 
have  not  been  able  to  designate  the  period,  or  to  discover  the  requisite  evidence 
of  such  an  entire  and  total  revolution.  Do  our  laws,  even  at  this  day,  allovv 
these  Indians  to  participate  equally  with  u.,in  out  civil  and  political  privilegea 
Do  they  vote  at  our  elecUons,  or  are  they  represented  ic  c>i:  legislature,  or 
have  they  an*  concern,  ae  jurora  or  magistrates,  in  the  adm..-:'.tration  ot  ju«- 
Uce?  Are  they,  on  the  other  hand,  charged  with  the  duties  and  burthene  of 
ciUxens?  Do  they  pay  taxes,  or  serve  in  the  militia,  or  are  they  required  to 
take  a  share  in  any  of  the  deUils  of  our  local  institutions?    Do  we  interfere 


Ill 


Muin  in  fee,  thin  a 
,."  p.  592. 

ni,  cannot  take  the 
e  holds  a  house  in 
I  be  leiaed  in  fee  of 
luable  aoniidoration, 
term  of  a  thousand 
'rime  if  seized  in  fee 
I.  TBe  lease  of  the 
I  Mr.  Prime's  "  ulti- 
lusand  years  hence, 
awyor  for  making  a 

le  laid  down  in  the 
f  pre-emption,  which 
,  may  be  technicallj 
ce  possession  of  the 
grantees  of  Georgia 
thus  got  possession. 
Wall-street,  would, 
oration  of  the  Mer- 
oration  in  possession 

it,"  to  use  the  very 
they  have  a  legal  and 
ingo  could  resist  the 
d  years. 

the  decision  4>f  the 
ng  the  popular  raean- 
r "  Thus,  for  instance, 
:ro  of  land  bordering 
might  be  charged  of 
:ortain  period, .  which 
But  as  to  any  mis- 
legal  decisions,  it  ii 
used. 

>  say  any  thing  about 

ime  before  the  Court, 

ry  other  Court  in  the 

constitution  itself. — 


ELLOR  KENT,  IN 
ion'*  R^porU,  vol.  xx. 

York. 

X  1  ''one  of  Indians, 
the  coQnsel,  who  con- 
nd  become  completely 
I  bound  to  all  the  du- 
event  took  place.  I 
the  requisite  eviBence 
mat  this  day,  allow 
nd  political  privilegea' 
is:  c'l:  legislature,  or 
adml^'i'tration  of  ju«- 
uties  and  burthens  of 
r  are  they  required  to 
[IB?    Do  we  interfere 


?:SIte.^esta  r  Do  orsi^    faws.our  ^hool  laws,  our  poor  law.   our 
laws  co"cerJing  infant,  and  apprentices,  or  concerning  .d.ots,  lunatics,  orhabi- 
tuirdrunk«d"faJplytothenr?    Arotl.e,  subiect  to  our  »»7' °^'''r'*7"  ^ 
tSeUnUedsSe^^against  high  treason;  and  .fo  we  treat   »««!  pun.sh  them  M 
Iraitors  insUkd  of  public  enemies,  when  they  make  war  upon  us?    Are  they 
Sect  tHur  laws  of  marriage  and  divorce,  and  would  we  »"»\7  »  """'°f, 
suDjeci  lu  uut    k;,._,»  if  »W.f  should  chanKo  their  wives  or  husbands,  at  their 
LToTasurl  ailSuing  C  heTr  o^^^^  citoms,  and  conUact  new  matrimo- 
^a^tcrs^  I  app'ehe'"fthatevery  one  of  these  questions  mu^^ 
"d  In  tie  negativetand  that  on  allthe'se  peinU  they  are  regarded  as  dependant 
alUes,  and  alien  commuuities."  pp.  709, 710. 
"Inmvviewofthe  subiect,  they  have  never  been  regarded  m  citizens  or 
V  "U^^irK^Ho  nolitic  within  the  contemplation  of  the  constitution. 
?hS'Cealwaysfinf  and  are  Si  considered  by  our  laws  as  dependent  tribe. 
loveCd  by  S  own  "age.  and  chiefs,  but  placed  -'»".°3°^f '»rf' 
fubjwt  to  our  coercion,  .o  far  a.  the  public  saMy  required  it,  and  no  farther. 

p.  flO. 

Indiana  alvaayt  conndered  aa  aeparaU  commmitiea. 

"  Through  the  whole  «,rie.  of  our  colonial  history,  thes.^  Indian,  were  con- 
.ideredM  dependent  allies,  who  advance  for  themselves  the  proud  chum  of 
free  nations,  but  who  had  voluntarily,  and  upon  honourable  terms,  placed  thera- 
Sve.  and  tho"r  lands  under  the  protection  of  the  Britaih  govor^iment  The 
rinial  aulhoriUes  uniformly  negotiated  with  them,  and  made  and  ob.evod 
treaties  with  them,  as  sovereign  communities,  exercising  the  right  o  lioe  aeiiue- 
Sn  a^i  aVtlonTbut.  in  confideraUon  of  proUction,  o^-^l^^^l^^fj-^i^- 
tion  in  a  natioMl,  but  not  in  any  individual  capacity,  to  the  British  crown. 

"No  Sent  can  bo  drawn  against  the  sovereignty  of  these  Indian  nations 
from  the  fact  of  their  having  put  themselves  and  their  lands  under  British  pro- 
Son      Such  a  fait  uTof  frequent  occurrence  in  the  transactions  between  in- 

'TSircommtuy  may  be  bound  to  another  by  a  very  -enual  alliance  and 
.ti'lbeasovereiffnstate.  Though  a  weak  state,  in  order  to  provide  for  ita 
Siit^,  Zuldpface  itself  under  the  protection  of  a  more  powerfu^  one,  yet  ac- 
!!r,^iV,\r  V„  VnttRl  CB    1  ch  1  e.  5.  and  6.)    f  it  reserves  to  lUelf  the  right  ot 

Totrgite  ot-^^^^^^  belsidered  as  -  'ndep-den»  "fsO 

l-here  are  several  kinds  of  submission,  says  t^is  same  jurist.  (B.  I-  ';»'•   6- «•  ^^^O 
The  submission  may  leave  the  inferior  nation  a  parl  of  the  «ov!=;;  g"^/;;^'- 
traininir  it  only  in  certain  respects,  or  it  may  tot^ly  abolish  it,  or  the  lesser  may 
be  nco^rporate^d  with  the  greater  power,  so  as  to  form  one  single  "tate,  in  which 
all  the  ciUzens  will  have  equal  privileges.    Now,  it  is  very  ^PP"«"\' f"-"™  ^^/^ 
whole  history,  that  the  submission  of  the  six  nations  has  ^een  of  the  former 
Jnd,and  that  as  an  inferior  nation,  they  were  ""'y  rf»«:°t^°;  \te  Indians 
eiirntv  in  certain  respects.  Though  born  within  our  territorial  limits,  the  Indians 
XoVsXed  L  bo?n  under  thf  dominion  df  their  tribes.    They  are  not  our 
.ubjects.  bom  within  the  purview  of  tho  kw,1,ecause  hey  "^"/"t  ^J" '^  "i^; 
dience  to  u.     They  belong,  by  birth,  to  their  own  tribe.,  and  these  tribes  are 
tZTi  under  our  Jrote^tioi,  and  de'pendent  upon   us  ;  but  sUU  we  recognize 
th^m  a.  national  communitiw.    In  this  situation  we  stood  ,n  relaUon  to  each 
other  at  the  commencement  of  our  revolu'  ^n.     .      .        ^.       .    *.„„„.♦  i??/;* 
»  The  American  Congress  held  a  treaty  with  the  six  nations  in  Aug"'*' 'JJ^' 
in  the  name,  and  on  beLlfof  the  United  Colonies,  and  a  convention  of  neu- 
SaUty  was  made  between  them.    '  This  is  a  f^iily  quarrel  between  us  and  old 
Englind.'  said  the  agents,  in  the  name  of  the  colonies;  '  y°".  I"'''^""  "^:?f, 
concerned  in  it.    We  desire  you  to  remain  at  home,  ard  not  join  e'tiM  side^ 
Again,  in  1776,  Congress  tendered  protection  and  friendship  to  the  Indians,  mo 
l^olved,  that  no  Indians  should  be  employed  as  soldiers  m  »'»,''."'»'°«„  °l  ""^ 
United  States,  before  the  tribe,  to  which  they  belonged,  should,  in  a  ndtiona 
council,  have  contented  thereunto,  nor  then,  without  the  exprew  approbaUon  ot 


^        I 


■s 


(        : 


•taalM 


.^--«- 


111 

an.  .  — .-  «f  •pnTsrninant  could  more  clearly  and  ttrongly  dMig- 
J:r.1c  ,„Ta'„Vrto";I. J^aSr fv'o™  oar  bodi..  pJutic.  and  a.  .apara., 

and  independent  communUiei  ?  Senocas.  who  had 

"In  1778.  C"ngre«re.olved,  that  they  wo^^^^^^  ^^^  ^^^^  ^^^^^^ 

joined  the  enemy,  '"V"    JhiWeU.luaThcy  dTr^tod  5,e  board  of  war  to  in- 
ISeneca  chief,  appeared  at  '  ^'l^delplua,  incy  amboasador.  of 

,„i«  whether  th-X  Xu"n'r77t  Sre«  h^S^^^^^  «ern,.  of  pcuce 

their  nation?     And  when,  in  i  <  '"''^""8  |j  j^     dicUtod  to  a  public 

with  the  Indian.,  the  ^"'"t'^  *  f  Var     ". y  had  not  .he  reinotct  resem- 
enemy,  known  a.  .uch  by  '^e '■'W-  »/  T^'  ^  *^^^^  „,  .ubjecu.  who  had 

Mance  to  the  term,  or  .pint  ''(''^'^^'^^^ ^^l^^^^y  waived  the  right  of  con- 

rotate,  and  J^o  ^ ^/rj^^iniuoriLo  hid  bS  n  ho.Ulo.  and  received  therr. 
gave  p«r.co  to  tho.e  of  the .«"' "fi'""!  J^  ":,.  t,ibe«  .hould  .tipulatc,  that  the 
Snder  p.  lection,  and  «1«'r«^',J'^^'  '/.S'  f,  h«  po  o»i™  « '^hcir  land-.  ^ 
Oneida.,  and  Tu.carora.,  .hould  bo  »f ""';'"  '"jjP  „„  tj.^  part  of  the  United 
"There  wa.  nothing,  th.m,  in  any  act  or  proM^^^^^^  ^^^^  ,^  ^^ 

Bute.,  daring  thV«7'"''T.JrTtC«Aat"on.  and  conJolidato  them  with 

-s'S/;;r  :%-ST.r/?.7rT.™  p-ru;.  ,u ..«-  ^.r.-. 

the  war."    pp.  711— 713.  .  „,_  _-j-  hetwcon  the  United  Statee  and  the 

"  In  1794,  there  wa.  »n°the' treaty  mriebetwMntM  ^^^^^^^  ^^^ 

.i,  natiomi,  in  which  ?"?«'"«}' P'^'^^.'^^^/l'S^Sedg^     the  land,  rcorved  to 

contracting  parlie.,and  the  United  S^^^^^^^^ 

the  Oneida.  Onondaga  and  Cayuga  nauonr^^^^  ^^,^^  ^^^^  ^ 

to  be  their  property;  and  the  '";»'^ ';°""'"' ^  under  diwuwion  :  The 

important,  and  a  very  deci.ive  bearing  upon  the  pom  individual.. 

United  State,  and  the  ",«  7''°""Xu;i.hS  "ike  place,  but  complaint 
on  either  side,  no  private  '•«t^'"^J>°"  the  other;  that  i.,  by  the  six  iia- 
.hall  be  made  by  the  {"J"[«/ pP^/, Sen?  of  the  United  State.:  and  by  or  on 
la^rP^iStTtftrS^e.^^^^ 

law  of  nations.  The  Uniieu  »'y''°  ""'  •  ,  j  yoreignties.  They  have  con- 
cur national  limit.,  a.  if  they  J""  «f '"S"  «''«^  ZvlT^dby  their  own  u.age., 

.tantly  treated  with  them  a.  «'«P«"j^»!  "'S  f  ^^^  troatie..  They 

and  POB«e.Bing  government,  compeentto^^^^^  .^  ^ 

.  have  con.idered  them  as  public  ?"^"'^^%'";^"'_Xns  citizens  of  thi.  state,  the 

and  tho  Indian.,  to  the  south  »"d  t°Jhe  west.  ^yj^^dots,  Ottawa.,  Chip- 

Mo  the  treaty  between  the  United  b^^^^^^^^^^^^^ 

pewaB,and  others,  in  »'8/; '' ^^f .[!  gta^'  they  shall  deliver  him  up  to  bo  pun- 
••robbcry.  upon  ac.t.zen  °f '''«U"f  **  f '"^^^^^  is  hero  made  part  of  a 

ished  according  to  »" 'j^V^^^^i'^'^  „eLrveTb^^^^  Indians  and  citiien.; 

national  compact,  and  the  d  stin»lion '»  P'*7';*P  ? "  •„  ^f  ,>.  one,  we  ab.iidon 
and  while  v;e  asaume  the  right    o  redres.  the  -njuries  ot  ,   ^^^  ^^^^^ 


■iWiawiKutttM 


MtitmrTTiiaaaa 


i'     I 


and  ttrongly  dwig- 
itie,  and  at  leparato 

le  Bonocas,  who  had 
,co  i  and  whrn  loine 
board  of  war  to  in- 
)B  or  amboaaadori  of 
upon  torma  of  pouce 
lictatod  to  a  public 
the  remotcft  resnm- 
or  subjectH  who  had 
ved  the  right  of  con- 
&nd  a  friendly  treaty, 
jn.     I^a«tly,  in  Octo- 
bolwcon  tho  United 
iid  Iho  'Jnitcd  Statoa 
lo,  and  rocoivcd  them 
id  itipulatc,  that  tho 
ion  or  their  land*, 
llie  part  of  tho  United 
air,  and  much  lew  to 
lonsolidato  them  with 
snt  language,  and  ad- 
ut  placed  in  the  same 
which  oxirted  before 

United  State*  and  the 
declared  botweou  the 
tho  lands  reserved  to 
treaties  with  thisstato, 
ion,  which  has  a  very 
nder  discussion :  Tho 
done  by  individuals, 
place,   but    complaint 
at  is,  by  the  six  na- 
States,  and  by  or  on 
ations,  or  of  the  nation 
B  proof  can  we  require, 
M  Indians?    We  have 
3  between  friendly  and 
loived  institutes  of  the 
h  those  people,  within 
ities.    They  have  con- 
d  by  their  own  usages, 
laintain  treaties.  They 
•d  friends  in  peace.     If 
itizons  of  this  state,  the 
us  tribes  of  Indians  in- 
tates;  and  it  is  worth  a 
veen  tlio  United  States 

iandots,  Ottawa*,  Chip- 
dian  commit  mnrder,or 
Oliver  him  up  to  bo  pun- 
sis  hero  made  part  of  a 
-en  Indians  and  cituens; 
of  t»-~  one,  we  abandon 
trtt  'ith  the  Chero- 

l  citi*w,«  of  tho  United 
es,  shall  be  punished  by 
one  of  our  own  citizens. 


113 

m 

They  also  contain  a  new  and  striking  provision,  and  that  is,  that  cititeBs  set- 
tling upon  their  lands,  thereby  forfeit  tho  protection  of  the  United  StateH.and 
the  Cherokees  may  puiiioh  llicm  as  they  ploase.  The  sanio  provision,  rolutivo 
to  the  surrender  and  punishment  of  person."  guilty  of  niu,di'r,or  robbery,  is  in- 
serted in  tho  treaties  with  the  Choctaws,  Cliiikusaws.  Shawancso,  Crocks,  Ot- 
tawas,  Chippewas,  &c.  And,  in  the  treaties  with  tho  latter  tribes,  in  t7(i9,  and 
1705,  citizens  sctllingon  their  lands  are  declared  tu  be  out  of  the  protection  of 
the  United  StateH,  and  liable  to  punifhmeiit  at  the  discretion  of  the  Indians. 

«  It  would  seem  to  mo  to  bo  ahnost  idle  to  contend,  in  the  Qice  of  such  provi- 
sions, that  these  Indians  were  citizens  or  subjects  of  tho  United  States,  and  not 
alien  and  sovereign  tribes, 

"  In  tho  ordinance  of  Congress,  in  1787,  passed  for  tho  gjvornniont  of  the 
territory  of  tho  United  States  northwest  of  tho  Ohio,  it  was  declared,  that  the 
Indians  within  that  territory  should  never  be  invaded  or  disturbed  in  their  pro- 
perty, fights,  or  hberties,  unless  in  just  and  lawfnl  war.  By  a  just'  and  lawful 
"war,  is  hero  meant,  a  controversy  according  to  the  public  law  of  nations,  between 
independent  States,  and  not  an  insurrnction  and  rebellion.  TheUii'tod  Slate* 
have  never  undertaken  to  negotiate  with  the  Indian  tribes,  except  in  their  na- 
tional character.  They  have  always  asserted  their  claims  against  them  in  tlie 
only  two  ways  known  to  nations,  upon  tho  ground  of  stipulation  by  treaty  or  by 
force  of  arms.  The  ordinance  further  provided,  that  laws  should  be  made  to 
prevent  wrongs  done  to  tho  Indians ;  and  this  implies  a  state  of  dependence  and 
imbecility  on  the  part  of  the  Indians,  and  that  correspondent  claim  upon  us  tor 
protection,  arisiag  out  of  tho  superiority  of  Our  condition,  which  afford  the  trua 
solution  to  most  of  our  regulations  concerning  them."    pp.  713 — 7|6. 

Manner  inwhith  the  Indian  aovereigntka  should  be  extinguished. 

'» I  do  not  therefore  consider  tho  act  of  1022,  as  affecting  tho  question,  whether 
the  remainder  of  tho  six  nations  still  rightfully  exist  as  a  separate  people,  or  whe- 
ther they  have  become  a'l  algamated  with  us,  and  incorporated  into  the  body 
pohtic,as  members  and  citizens.  In  my  opinion,  that  statutohad  noaurii  intention; 
and  when  the  time  shall  arrive  for  us  to  break  down  the  partition  v  ill  be'  vecn 
u*  and  them,  and  to  annihilate  the  political  existence  of  the  Indian-  as  nation* 
and  tribes,  I  trust  wo  Hhall  act  fairly  and  explicitly,  and  endeavour  to  effect  it 
with  the  full  knowledge  and  assent  of  tho  Indians  themselves,  and  with  the 
most  scrupulous  regard  to  their  weaknesses  and  prejudices,  and  with  the  entiro 
approbation  of  the  government  of  tho  United  States.  lam  satisfied,  that  such 
a  course  would  bo  required  by  prudence,  and  would  become  necessary,  not  onlj 
for  conscience  sake,  but  for  the  reputation  of  our  justice."    p.  717. 

Guardian  care  of  our  government,  and  fidelity  of  the  Indiana. 

»  Thus,  in  the  resolution  of  Congress  of  January,  1776,  regulating  trade  with 
the  Indians,  it  was  declared,  that  no  person  should  bo  permitted  to  trade  with 
them  without  license,  and  that  tho  traders  should  take  no  unjust  advantages  of 
their  distress  and  intemperance.  In  a  speech,  on  behalf  of  congress,  to  the  six 
nations,  in  April  1776,  it  was  said  to  them,  that  Congress  were  determined  to 
cultivate  poacu  and  friendship  with  them,  and  prevent  the  white  people  from 
wronging  them  in  any  manner,  or  taking  their  lands  :  that  Congress  wished  to 
afford  protection  to  all  their  brothers,  tho  Indiana,  who  lived  with  Uiora  on  thi* 
great  Island ;  and  that  the  white  people  should  not  be  suffered,  by  force  or 
fVaud,to  deprive  them  of  any  of  their  lands.  And  in  November,  1779,  when 
Congress  were  disouesing  the  conditions  of  peace  to  bo  allowed  to  tho  six  na- 
tions, they  resolved,  that  one  condition  should  be,  thai  no  land  should  be  sold 
or  ceded  by  any  of  tho  said  Indians,  cither  as  individuals,  or  as  a  nation,  unless 
by  consent  of  congress. 

"This  resolution,  almost  coeval  with  our  constitution,  shows  the  important 
faci,  that  individual  Indians,  as  well  as  tribes  and  communities,  were,  and  ought 
to  be,  equally  protected  from  imposition  in  the  sale  of  their  lands ;  and  if  suoli 
were  tho  views  of  congress  in  1779,  why  should  not  the  same  views  have  been  in 
the  contemplation  of  our  constitution  in  17771' 

ir, 


i'- 


w 


114 

the  republic,  watched  ^  ^'^  gr«»t  anxi.ty  ove,    n    P^^       J^^^  ^^^^^^ 
tru.te5  to  lh«.r  c.re.     It  mu.     '^e  been  imn  ^^  ^^^^^^^  ^^  in.li»idu»U. 

p«rty  proceeded,  .ndwhclhorUwMOwncuuy  p,oleclion  from   us  M 

fFit'wa.  Indmn  property  "V,^''',';ii;'„\\'„ao?  the   colony  adminUtration. 
againit    oar    own    people.      V   ,i  "    T.  «arlv   a.  lOfU.  the  Onondaga,  and 
^nfidedthe.rlandato  "7P;°'«^'°"-;Vo?Kw  York,  hat  they  werS  a  frw 
Cayuga^  for  instance,  told  the  «»*?7°J  "[.f^^JXr  the  protection  of  th. 

nation.,  .tatc,  that  the  Dutch  .«"*V.l  intil  thoFnaliM.con.iucrid  the  coUny 
tinued  without  any  breach  °V'  ^IrV  then  ronewrd  a^^^^  the  Indian.,  h. 
in  1604.  Friend.hip  and  protoc Uon  «^^/«  SVTo  hU  day^  and  wo  know  that 
.ay.,  obwrved  the  alliance  °\''*y„P"\**'  f,„V°riod  of  our  rovolution.  On 
their  fidelity  continued  un.hakon  do  vno  the  per  od  o  ,.^,4 

one  occaaion,  the  colonial  awombly,  in  ^l^y.^^^yT 'V  '  j."       ^..j  poicing 
their  abhorrence  of  the  prefect  of /«•»"«'"«  ^''" 'jS  JS.o  he  interest 
th.m.elve.  of  Iheir  land.-  for.  to  'h«  f  f '";'"  °/„lSe,  thMr    nternal  .ecuritv. 
Great  Britain,  they  .aid  they  owed,  in  »  S'^j'V  '"'Tf^^^^^^^^  We 

The  colony  govornor.con,tvjt^acknowledg  d  the    ft^  ^^^^.^^^  ^^ 

have,  on  the  other  hand  in  favour  °[  ^^o  co  ony      e  r  p  ^^^  ^^^^  ^^^ 

congre..,  to  which  I  h-'ve  already  """ded,    tl  a   th«,  c        y      ^^^  ,  ,i„g 

Se'^t.tr.'foVro'lcrnStu:^^^^^^^^^^^  depend^enU  and  allio.  of 

''l'^ZZ£,  who  will  '^o-Uate^o^  that  U  w.  w.^^^ 
of  our  people,enioy  ng  .0  great  a  »"P«  ">"  ^  "^j  J^',"  '"f  property,  and  the  art. 
of  the  mind,  in  ttie  liglit.  "^/X  n;„tPclion  of  the  prope  ty  of  the  feeble  and 
of  civilized  life,  to  have  made  the  P^°<;^?^'°"  °\>^'t  ^^  Vu„Jamental  article  of 
dependent  remnant,  of  ^^e  nation.,  with  n  our    m^t.,  a  «u  ^^,^  ^  ^^^ 

the  government?     Hi.notle..  wi.e  than  it  i.ju.t,togJ  ^^^^  ^^^^^^ 

«d  liberal  interpretation,  in  f^J"";;  "^i'LraSn  of  the  "ubect. that  the  article 
bear  in  mind,  when  wo  proceed  to  the  c"""^"*^"'?  °'  {'^l^^J  ^.'^ell  a«  for  our 
wa.  introduced  Jr  the  benefit  a^^^^^^^^ 

rg'.°tir  rhr.tx7ar.sf£re  {^r^^/^.r/^^^^^^^^^^^^^^       • 

our  ancestor,  a  feeble  colony,. ottlod  "«"»•?« ^""^'J'iX  fir.t  placed  tRem- 
.hore.  of  the  Hudson  and  the  Mohawk,  when  thojel^d^an.  P^^^  ^^^.^  ^^ 

«,lve.,  and  their  land.,  under  o"'P'°^«/^'°";j'"^''hen  wo  consider  the  long  and 
friendahip  that  was  to  endure  for  '^«»-  ^^^^^^^.^^^.j  ^n  our  account  with  the 
distressing  war.  in  which  ^^o  n«l.a«.  were  mvolv^^^^  ^.^^  ^^  ^.^^^^^ 

Canadian  French,  and  the  artful  means  ««'"»*",    j^  '  ^j^nty  ha.  been  no 

detach  them  from  our  '^"''"«^ '\„'»""^'^\*^o,'e?nSid  .pirit.  than  by  the.e 
where  bettor  observed,  or  maintained  with  a  more  inuoiu      f 

generous  barbarian.."  pp.  J^""'^'. .  „  ,.  „  Oneido.  aa  very  dofencelew;  and. 
*  "The  act  of  March  15th,l799,con.ider.  the  One  dMW^^^^^^  ^.^^^^  ^^ 

in  order  to  protect  them  from  '™P""^'°":;;£rl7arT«»  between  the  tribe,  or 
adviM  and  direct  them  in  all  controve«ieslh<^t  may  ari^  ^^.^  instituted 

'        -Cf lir^tf institu?e^r.?^^^  -a  particularly  for  treepa... 

committed  upon  their  lauds."    p.  732. 

.  Thi.  la.t  paragraph  is  commended  to  the  particular  atten.ion  ol  eongreM 

The  tate  of  New  York  provided,  at  the  public  expense,  that  the  — "  '"^"f 
^tiL  .houla  have  a  competent  legal  adviser,  in  all  ";«-7'7;  ''.^:,' 
and  impoaition.  Doe.  it  not  become  the  magnanimity,  I  might  "y^^e  ju«t.  «, 
"ouT  national  government  to  provide  immediately,  and  at  the  public  expense. 


nd  nurect  daya  of 
of  the  lndi»n»  in- 
it  Nourre  the  pro- 
ei,  or  inilividuaU. 
:tion  from  ui  m 

adminiiilratiotw, 
J  OnoniliiKM  •nd 
,  they  were  a  free 
protection  of  the 
le  other  lide  of  the 
olony  government 
laken  For  upwardi 
jtt  honorable,  and 
hiitory  of  the  eix 
them,  •which  con- 
iKjucrod  the  coUny 
id  the  Indiani,  he 
and  wc  know  that 
ir  revolution.    On 
[ovornor,  expreeeed 
rce,  and  potaetwing 
initolheintereetof 
r  internal  iecurity. 
ip  and  iorvicee.  We^ 

of  a  committee  of 
y  of  Now  York  had 
ling  and  tupporting 
mdcntii  and  allioi  of 

hy  of  the  character 
nB,  in  the  cultivation 
ropcrty,  and  the  arte 
rty  of  the  feeble  and 
iidamontal  article  of 
I  that  article  a  benign 
view.  We  ought  to 
ibject,  that  the  article 
1)8,  a»  well  as  for  our 
notonly  by  duty.but 
ful  confodcracy,  and 

ocean,  and  along  the 
ine  first  placed  them- 

a  covenant  chain  of 
lonsJder  the  long  and 
our  account  with  the 
from  time  to  time,  to 

fidelity  haa  been  no 
d  apirit,  than  by  theae 

very  defenceleaa;  and, 
ornoy  of  the  district  to 
.  between  the  tribe,  or 
lefend  suiU  instituted 
icularly  for  treapaaaea 

attention  of  congresi. 
that  the  amall  tribe  of 
leir  exposures  to  fraud 
I  might  say  the  juatice, 
4  at  the  public  expense. 


iiri 

•late  of  New  Vork  have  .aid  on  thia  subject. 

EXTRACTS  FROM  JUDGE  S^'S  CENTENNIAL  DISCOURSE. 
The  leaialature  of  Georgia  aaya,  that  the  govcmmcnU  of  Europe,  and  colonl.a 

««hnr  two.  has  aaid  on  this  subject.  j     ..• 

"•'rOuILefather,  did  not  atiempt  -  J-Ufy  £ir  own  cm^.^^^^  -tl. 

ment,upon  the  European  '«''<=t»7  "f.  ''^  "^1.  °  tSeU  the 

ftom  the  crown  f  °«l'^'"«<»  »  ^rant  of  Un-^^^^^^^  ,^„,,  ^^^.^  j,, 

general  question  behind.    '  ^^^'J*"'^"J 'X«    tho  sons  of  Adam  ?'    Their 
Ed  hath  been  of  '«"«♦"""  P^'^r.J/^tS^  bold  assertion  of  prin- 

answer  ia  memorable  for  ita  «'«»"f"/Jd!,,«'\\,  proper  to  none.    Thia  aav- 
ciplcs.    That  which  la  common  »"  »"  (^  ";*>^>  ^^  Wncrty.    '  Why  may  not 

age  P««Pl« '">«lh  »'°T'"'      H  Ze     atioit  theT  i^  waste  lands? 

aristians  havo  liberty  to  go  and  /«»"  '''"fX  _ht  t^  ho  t  rth.  There  is  a 
God  hath  ^iven  to  the  sons  of  '^ZlTri^Ui^Xi^r^h  v  hen  men  held  tho 

natural  rigl^t  and  a  S^'i"|^»„  J^^'jf  JfeVSpri'^'^^^^  •<"""  P""^"''  ''^  «'*"""'' 
earth  in  common.  When  »"»7"°"  "A^- '^1^^^  c,ot  tSem  a  civil  rignt.  There 
by  enclosing  and  peculiar  5"»"»;^"=."'.£''"^  oTd Cth  consumed  them  with  a 
i.  more  than  enough  >»"d  for  "*  and  *hom  ^  «  '''^"^j  j^  j^ft  ,„ij  of  inha- 
miraculous  plague,  whereby  the  g!'«t«'  P^^  "'^J",^"^^  J  ,,,0  native..'  Such 
b-tanU.    Besides,  we  shall  como  m  with  the  gooa  '«Y°  *"  ,  •  .         J,^^ 

conaUnlly  reapeclcd  the  Indians  in  their  setllenienU  and  clairaa  of  soil.     1  he> 


I 


} 


f 


lie 

prol.el*d  lh«r.i  from  tb.  ir  «..m.»  wh«n  thsf  wajht  fefug«  «««««  !kem.- 

vMn.  but  •  'itl'-  CMC  ©•'••-riou.  wMf»r«  occiirmd  :  wui  ihoiigh  w«  rtnnol  but 
«—- -.  th« .  1  dltiM  then  p«iriKitr«Ud.  Ih.re  in  no  pwlonce,  ibat  Uiey  w«r«  the 
UMfMMrai'^  th«erttMt.  Wh.Uver  complainU.lhurefor*.  inty  beju.tly  urf«a 
iTplXophy.or  mn.nily.  or  r.ligion,  in  our  .Uy,  rr.i>w:lini  U.«  wrong,  .nd  . 
iifiuf  <  of  thi  Indian.,  they  Mt^\y  tourl.  the  IMgrim.  of  Now  KngUi.d.  fheir 
h.  .-'  -  <  r«  not  mil.rued  in  innocent  blood.  Th.ir  nearlt  w«ru  not  bB»vy  with 
erlmM  «nd  onprewion.  m.grnderod  by  avarice.  If  th.y  w*re  not  wholly  without 
bUme.  ihty  wer«  not  deep  m  guilt.  They  might  mi-t.kB  the  time,  or  he  mode 
cfchri.liJ.iiingandci»iluuiglhe  Indian.;  hut  they  did  not  .•ek  pretei.c.e  to 
Mtirpate  them.  Private  ho.lilUiM  and  bulcherie.  there  migi.t  be,  but  they 
were  not  encor.raged  or  jii.l.rtod  by  the  g ovorn.nent.  It  i»  not.  ihen.  a  ju.t  re- 
oroach,  wmrtime.rtti.t  on  their  nicmorio.,  that  their  religion  narrowed  down  ila 
ebantie.  to  Chri.tian.  only;  and  forgot,  and  de.pi«id,  and  oppre.«id  tliM*  for- 
lorn children  of  the  for««l."    pp.  1i~Tt. 

TREATY  WITH  THF.  CIIOCTAW8. 

The  fourth  article  of  the  treaty  of  li!'20.  i*  in  the  following  worda  :— 

»  The  boondaricn  hereby  e.ta'.lii<hcd  between  tho<'hoctaw  Indtm.  and  tha 
United  Htale.,onthiniideoftho  Miwiwiiiti'i  river, .hall  remain  irilhoal  alltralion 
until  the  period  iitwhich.aid  nation  nhulliHiromo.ocivdiiedandenlmhteneiUr  to 
be  made  citizen,  of  the  United  Hlnte.;  and  Congro..  .hall  lay  offa  liaiitod  parcel 
of  land  for  the  ben*sfit  of  each  family,  or  individual,  in  the  nation." 

In  the  •ub.e.iuent  Iroatjr,  negotiated  by  Mr.  Calhoun,  Jan.  ',»0,  1025,  Ih  .amo 
•ubject  wa.  taken  up,  a.  follow.  :  ...  „         ,...,. 

"It  in  further  agreed,  that  the  fourth  article  of  the  treaty  afore.ald  .hall  be  so 
modified,  a.  that  tliaCongrewof  the  United  Htale.  .hall  rjot  oxorci.o  tho,.ow«JT 
ofapportioning  the  land.,  lor  the  bcnortl  of  each  lamily  or  individ.ial,  ol  the 
Choctaw  natio.i,  and  of  bringing  them  under  the  law.  of  the  United  State.,  but 
with  the  coniont  of  th»  (;iioctaw  nation."  ^     ■  •  i         l 

In  franiuK  the  fourth  atticlo  here  referred  to,  the  intention  rau«t  nave  been, 
aither  that  the  ( "liottaw.  .hould  uliimatoly  form  a  territory  hy  lh«mre!ve., 
which  .hould  be  taken  under  the  care  of  the  general  govorumont ;  or  that  they 
(hould  become  citizen,  of  the  Htato  of  Mi»»iiMiippi,  and  thu.  citizen,  of  tho 
United  8lute».  But  neither  of  tho.o  thing,  were  to  take  place  till  the  Choctaw, 
■bouid  have  become  enlightened,  and  C  ngr*««  should  have  declared  them  to  bo 
■o  and  .hould  have  made  an  apportionment  of  their  land.. 

In  the  la«t  treaty,  framed  lew  than  llvi.-  jcar.  ago,  it  ii  .olemmy  .tipulated, 
I  ,H  u»  Choctaw,  .hall  not  be  brought  under  the  law.  of  tho  United  States  m 
any  muh)  "but  with  tho  conwjnt  of  the  Choctaw  nation."  Thi.  la  the 
■ame  Uiing  aa  to  .ay,  thai  tho  Choctaw  nation  ie  left  wlioro  it  wa.  origi- 
naUy  and  where  tho  other  Indian  nation,  now  are :  vu.  under  their  own 
l»wi,'and  not  under  the  law.  ofany.loto  nor  of  the  JJnitod  State.. 

The  PrwidentofthoriiUd  Stole.,  in  hi.  late  Moaago  to  Congrew,  .aya 
T«ry  truly  -.—"Upon  thi.  country,  more  than  any  other,,  ha.,  in  thp  providence  of 
God,  been  caat  tha  apocial  guardianship  of  tho  groat  principle  of  adherence  to 
written  conititution.."  Let  it  be  rem  nbered  that  Uie  cointitution  of  tho  United 
SUto*  i.  oxpre..  and  positive,  i.-i  regard  lo  the  binding  nature  of  treaties  ;  and 
that,  by  a  solemn  stipulation  in  our  la.l  treaty  with  tho  Choctaw.,  negotiated 
by  the  Secretary  of  War,  now  Vice  Preaidont  of  tho  United  State.,  Ihnt  nation 
of  Indiant  is  not  to  be  bioughl  undtr  our  lam  BUT  WITH  ITS  OWN 
CONSENT. 


The  End. 


fs  amsng  Qiem. — 
;  lh«  ipace  of  RPty 
)iigh  w«  rtnnot  but 
Itiiit  Uiey  wcra  Iha 
iity  li«  jiutly  urfsd 
ng  the  wrong*  and 
ew  KngUiitl.  Their  ' 
orii  not  heavy  with 
not  wholly  without 
9  time,  or  the  mode 
t  aeek  |)reteiice«  to 
tiiigiit  he,  but  they 
nut,  ihen,  a  juit  re- 
narrowed  down  ill 
)pproiMd  thtM  for- 


f  ivordi  :— 

,w  Indimi  and  tha 

in  ifilhoal  alleralion 

nd  enhghteiiodarto 

y  olf  a  limited  parcel 

ation." 

.  20,  IU25,  th   «amo 

aPoruiaid  ahall  be  so 
t  oxorcifo  the  ,iow«r 
r  individual,  of  tho 
I  United  State*,  but 

on  ntiuit  have  been, 
ory  by  thvuirelvei, 
imont ;  or  that  they 
thu*  citizou*  uf  the 
tcotill  the  (Choctaw* 
declared  thum  to  b«i 

aotomniy  stipulated, 
tho  United  States  ii\ 
ion."  Thii  ia  the 
whoro  it  waa  origi- 
I.  under  their  own 
State*. 

to  Congrcaa,  laya 
in  thp  providence  of 
iple  of  adherence  to 
itution  of  tho  United 
ire  of  treaties ;  and 
hoctawa,  negotiated 
1  State*,  Ikal  nation 
WITH  ITS  OWN 


»  J:^ 


